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Income Tax - Case Laws
Showing 61 to 80 of 9304 Records
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2022 (12) TMI 1452
Rectification of mistake - as per assessee gross total income of the assessee cannot be made subject to tax without allowing the corresponding expenses - As per CIT(A) the income shown by the assessee does not require any expenditure to be incurred against such income but it is the surmise and conjecture of the learned CIT-A in the absence of necessary details - HELD THAT:- For instance, if the impugned income shown under the head other sources represents the income from interest out of the own interest free fund available with the assessee, then the question of making the deduction of the corresponding expenses under the provisions of section 57 of the Act does not arise. But this fact has to be established which could have been done easily by the authorities below by writing a later to the bank for collecting the information under the provisions of section 133(6) of the Act.
But it has not been done so but the entire blame has been put on the head of the assessee without carrying out necessary verification to appreciate the facts in the right perspective. Thus, we are of the view that the ITAT has also passed the order without appreciating the facts and upheld the order of the authorities below. Thus, we are of the view that the order of the ITAT suffers from the mistake apparent from record as it was given without appreciating the fact about the exact nature of the income.
It is also important to note that the ITAT in the subsequent order in the case of Shri Naranrai Rambhai Zala [2022 (9) TMI 1515 - ITAT RAJKOT] has rightly set aside the issue to the file of the AO for fresh adjudication as per the provisions of law. In view of the above, we recall the order passed by the ITAT with the direction to the registry to fix the same for fresh hearing under intimate to both the parties. Hence the MA filed by the assessee is allowed.
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2022 (12) TMI 1448
Deduction u/s 80P - claim denied as assessee not filed it’s return within the due date u/s 139(1) - HELD THAT:- We make it clear that the assessee has indeed quoted Section 80AC(ii) of the Act that although it has been prescribed in the relevant statute to claim the impugned deduction only after filing Section 139(1) return before the due date, this tribunal’s recent coordinate bench in the case of M/s. Krushi Vibhag Karmchari Vrund Sahakari Path Sanstha [2022 (10) TMI 348 - ITAT NAGPUR] has held the foregoing condition(s) as “directory” and not a mandatory one.
We find no merit in assessee’s foregoing arguments claiming Section 80AC(ii) as a mere directory provision in the light of Commissioner vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] that provisions in a taxing statute (including deductions) have to be strictly interpreted only.
We next observe that the legislature has interpreted “no such deduction” and “unless” in Section 80AC(ii); for the period after 01.04.2018, by way of negative covenants which forms a mandatory stipulation only in light of PRINCIPLES OF STATUTORY INTERPRETATION by Justice G.P. Singh (termed as the treatise on the subject of statutory constructions) under Chapter 5 thereof.
So far as the assessee’s reliance on this tribunal’s learned coordinate bench’s decision (supra) is concerned, the same hardly forms a binding precedent once dealing with assessment year 2009-10 only i.e., before 01.04.2018. We thus uphold the learned lower authorities action under challenge therefore denying sec.80P deduction in issue.
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2022 (12) TMI 1447
Deduction u/s 80P - Assessee had not filed it’s return within the due date u/s 139(1) - HELD THAT:- We make it clear that the assessee has indeed quoted Section 80AC(ii) of the Act that although it has been prescribed in the relevant statute to claim the impugned deduction only after filing Section 139(1) return before the due date, this tribunal’s recent coordinate bench in the case of M/s. Krushi Vibhag Karmchari Vrund Sahakari Path Sanstha [2022 (10) TMI 348 - ITAT NAGPUR] has held the foregoing condition(s) as “directory” and not a mandatory one.
We find no merit in assessee’s foregoing arguments claiming Section 80AC(ii) of the Act as a mere directory provision in the light of Commissioner vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] that provisions in a taxing statute (including deductions) have to be strictly interpreted only.
We next observe that the legislature has interpreted “no such deduction” and “unless” in Section 80AC(ii); for the period after 01.04.2018, by way of negative covenants which forms a mandatory stipulation only in light of PRINCIPLES OF STATUTORY INTERPRETATION by Justice G.P. Singh (termed as the treatise on the subject of statutory constructions) under Chapter 5 thereof.
So far as the assessee’s reliance on this tribunal’s learned coordinate bench’s decision (supra) is concerned, the same hardly forms a binding precedent once dealing with assessment year 2009-10 only i.e., before 01.04.2018. We thus uphold the learned lower authorities action under challenge therefore denying sec.80P deduction in issue
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2022 (12) TMI 1446
Penalty u/s 271D - transaction otherwise than by an account payee cheque or use of electronic clearing system through a bank account etc., violated Section 269SS - whether without satisfaction being recorded in the assessment order, penalty can be levied by the Joint Commissioner u/s 271D? - HELD THAT:- We find that petitioner had submitted reply to the show cause notice on 02.06.2022. In his reply, petitioner mentioned that no satisfaction was recorded by the assessing officer in the assessment order as to infraction of Section 269SS of the Act. Therefore, no penalty could be levied u/s 271D of the Act without recorded satisfaction. In this connection, reference was made to the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City [2015 (11) TMI 1453 - SUPREME COURT] wherein it was clarified that provisions of Section 271E are in pari materia with the provisions of Section 271D.
This aspect of the matter was not considered by respondent No.1 while passing the impugned order. Respondent No.1 relying upon the Kerala High Court decision in Grihalaxmi Vision [2015 (8) TMI 1214 - KERALA HIGH COURT] noted that competent authority to levy penalty is the Joint Commissioner. He has also referred to an earlier decision of the Supreme Court in CIT V. Mac Data Ltd [2013 (1) TMI 574 - DELHI HIGH COURT] wherein it was observed that assessing officer has to satisfy himself as to whether penalty proceedings should be initiated or not. Assessing officer is not required to record his satisfaction in a particular manner or reduce it into writing. Therefore, respondent No.1 imposed the penalty under Section 271D of the Act.
We are afraid respondent No.1 had completely overlooked the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City (1 supra). In the said decision as extracted above, Supreme Court had concurred with the view taken by the High Court holding that satisfaction must be recorded in the original assessment order for the purpose of initiation of penalty proceedings under Section 271E of the Act. We have already discussed above that provisions of Section 271E and 271D of the Act are in pari materia. When there is a decision of the Supreme Court, it is the bounden duty of an adjudicating authority, be it an income tax authority or any other civil authority or for that matter any court in the country, to comply with the decision of the Supreme Court.
Article 141 of the Constitution of India is clear that law declared by the Supreme Court shall be binding on all courts within the territory of India. This is further clarified in Article 144, which says that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. We are therefore, of the unhesitant view that respondent No. 1 overlooked the relevant considerations while passing the impugned order dated. 29.11.2022.
Further, issue in the present writ petition is not the competence of the Joint Commissioner in issuing the order of penalty. Therefore, reference to Grihalaxmi Vision (2 supra) was wholly unnecessary. WP allowed.
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2022 (12) TMI 1445
Penalty u/s 271D - HELD THAT:- When the attention of learned Senior Counsel was drawn to the fact that impugned order is an appealable one and why petitioner has not filed appeal, he submits that issue involved in the matter is squarely covered by a decision of Jai Laxmi Rice Mills Ambala City [2015 (11) TMI 1453 - SUPREME COURT] This aspect was specifically brought to the notice of the first respondent by making written submission on 02.06.2022. However, ignoring the above, impugned order came to be passed.
Issue short notice to the respondents. Income Tax Department waives notice for both the respondents.
List this matter on 23.12.2022 for admission hearing high on board when an endeavour may be made to hear the matter.
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2022 (12) TMI 1441
Application and entitlement of Section 43B - Tribunal confirming the disallowance of service tax payable u/s 43B, particularly when the same was not charged to the Profit and Loss Account or claimed as a deduction in the computation of income - whether there is any evidence or material on record for the Tribunal to substantiate its finding that the service tax payable represents service tax collected by the Appellant? - As argued the liability becomes payable when it is received and accounted for by the assessee. Therefore, applying Section 43B to the case on hand is illegal - alternatively argued that having regard to the jurisdictional limitations of this Court in an appeal u/s 260A when a patent error is pointed out in the circumstances considered by the Tribunal, the assessee should be afforded an opportunity before the Tribunal to canvass what the claim was and why the disallowance made by the AO is illegal and unsustainable.
HELD THAT:- We have perused the order of the Assessing Officer, CIT (Appeals), and excerpted the mistake committed by the Tribunal from the material on record. We are of the view that the questions now formulated are substantial in nature, for conclusions are recorded on an erroneous appreciation of the reply of the assessee.
Therefore, for statistical purposes, the questions are answered in favour of the assessee and against the Revenue.
The common order is set aside and remitted to the Tribunal for consideration and disposal in accordance with the law.The parties, if so advised, are given the liberty to bring on record such material as respective parties may deem fit in support of their contentions.
Assessee also claims the application of Section 145A of the Act. For the view we have expressed above, it is clear that we have not examined the availability or the extent to which the assessee’s case could be considered under Section 145A. All contentions are left open to be considered by the Tribunal.
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2022 (12) TMI 1439
Estimation of income - bogus purchases - addition sustained by the ld. CIT(A) at the rate of 5% of bogus purchases - HELD THAT- We note that the issue under consideration is squarely covered by the judgement of the Co-ordinate Bench in the case of Pankaj K. Chaudhary [2021 (10) TMI 653 - ITAT SURAT] wherein the Co-ordinate Bench of Surat has sustained the addition at the rate of 6% of bogus purchases. Thus we dismiss the appeals of the assessees and we allow the appeals of the Revenue partly.
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2022 (12) TMI 1436
Assessment u/s 144C r.w.s. 144B - Corporate Social Responsibility (CSR) - Disallowance of deduction u/s 80G - DRP concluded that even though deduction for CSR Expenses was not allowable u/s 37 (in view of the Explanation 2 to Section 37 of the Act inserted by the Finance Act, 2014, with effect from 01.04.2015), there was no bar for allowance of the same under Section 80G of the Act (except for the donations made to the Swach Bharat Kosh and the Clean Ganga Fund), provided all the other conditions of Sec. 80G are fulfilled.
HELD THAT:- DRP issued specific direction to allow deduction u/s 80G of the Act after verifying whether the other conditions specified u/s 80G were fulfilled. As per mandate of Section 144C(13) of the Act, upon receipt of directions issued by DRP the Assessing Officer was required to complete the assessment in conformity with the directions issued by the DRP.
We hold that the Final Assessment Order, passed by the AO was not in conformity with the directions issued by the DRP and is therefore, set aside, being contrary provisions of Section 144C(13) of the Act. The issue is remanded back to the file of AO with the directions to pass the Final Assessment Order in conformity with the directions issued by the DRP. Appeal allowed.
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2022 (12) TMI 1433
Accrual of income - reliance on documents seized in search - In view of the admitted facts, AO, FAA, and ITAT having concurrently recorded findings of the fact against the assessee
HELD THAT:- Having considered the review petition on both merits and delay, we find no grounds to interfere.
Review petition is dismissed.
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2022 (12) TMI 1432
Stay of demand - petition by directing the appellant to deposit 20% of the tax - high pitched assessments - HELD THAT:- Admittedly, the assessments are high pitched assessments and when such high pitched assessments are appealed against and an order of stay is sought for either before the AO by filing an application u/s 220(6) orders are passed by the assessing officer either keeping the notice of recovery in abeyance and not treating the assessee as an assessee in default till the appeal is disposed of.
There are yet another set of cases where the AO for reasons to be recorded imposes certain conditions as a condition for grant of stay. The appellant’s case falls under the second category where the assessing officer has directed 20% of the demand to be paid by the assessee for being entitled to grant of stay.
It is an undisputed fact that as against the impugned assessment order, appeal has been filed before the CIT (Appeals), second respondent on 25th January, 2018. It is not clear as to why the appeal is pending before the Commissioner (Appeals) for more than two years. Identical issues have come up for consideration before various High Courts and we would refer to two of the decisions of the High Court of Delhi, namely, Valvoline Cummins Limited [2008 (5) TMI 20 - HIGH COURT OF DELHI] and Soul [2008 (8) TMI 502 - DELHI HIGH COURT].
In both these cases, the Hon’ble Division Bench of the High Court of Delhi has considered high pitched assessments and has also taken note of the instruction issued by the CBDT and have held that when the assessments are unreasonably high pitched, the notices of recovery should remain stayed till the disposal of the appeal by the first appellate authority. In cases on hand, the return filed by the assessee was a loss return. However, the assessing officer has assessed the income and it is definitely a high pitched assessment. That apart, we find that the appeal was filed before the Commissioner of Income Tax (Appeals) well within the period of limitation and is pending since 25th January, 2018.
We are informed by the Advocate appearing for the appellant that till date the notice of demand has not been enforced on the assessee. Thus, considering the peculiar facts and circumstances of the case, we are of the view that the appeal itself should be directed to be disposed of by the Commissioner of Income Tax (Appeals) at an early date and until then, recovery proceedings should be kept in abeyance.
Appeals are allowed and the order passed in the writ petitions is set aside with a direction to keep the recovery notices issued by the assessing officer kept in abeyance and direct the CIT(Appeals), the appellate authority, to disposed of the appeals on merits.
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2022 (12) TMI 1431
TP adjustment - comparable selection - HELD THAT:- Exclude Infosys BPO Company from the list of comparable as company has diversified functions, top global brand and huge turnover of Rs.1831.36 Crores.
M/s. Eclerx Services Ltd. is not comparable since it is functionally different. Since there are no segmental details, expenditure incurred on outsourcing, we are of the opinion that the CIT (Appeals) is justified in excluding this company as comparable. Admittedly, the functions of the assessee as well as e-Clerx have not change for the last two years i.e., from 2010-11 and 201213. AO in these two years had not considered e-Clerx as a comparable. No reason to grant any relief to the Revenue. Accordingly, we uphold the order passed by the ld.CIT(A) excluding the e-Clerx from the list of comparable.
Remit the issue of comparability in respect of these three companies i.e. M/s. Jindal Intellicom Pvt. Ltd., M/s. Informed Technologies Limited and M/s. Ace BPO Services Pvt. Ltd. to examine and decide as per law.
Interest rate charged on the trade receivable - AR had submitted that the Tribunal had allowed the credit period of 120 days as held in OSI Systems Pvt Ltd, Hyderabad [2020 (12) TMI 294 - ITAT HYDERABAD] and trade payables are required to be setoff against the trade receivables and the interest should be restricted to LIBOR plus 100 - CIT(A) has restricted the charging of interest at LIBOR +200 basis points allowing the credit period of 60 days - HELD THAT:- Though, the ld.AR cited the decision in the case of OSI System Pvt. Ltd.[Supra] but, the said decision is not applicable to the facts of the case as the Tribunal in the said case had held applicability of LIBOR +200 basis points to be applied on the trade receivables. Similarly, the Tribunal without assigning any reason has held that 120 days credit period is reasonable period.
In our view, no documentary evidence has been brought on record before us so that we can infer that 120 days credit period is a reasonable period. CIT(A) after relying upon the decision of OSI Systems (supra) for the reasons best known to him, had arbitrarily reduced the credit period from 120 days to 60 days.
The approach of ld.CIT(A) is without any basis. Hence, we direct the TPO/Assessing Officer to charge interest at LIBOR + 200 points. We direct AO / TPO to allow the credit period and charge interest over and above the outstanding period of 120 days.
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2022 (12) TMI 1428
AO jurisdiction to assess the case of assessee - Tribunal held that after the Commissioner of Income Tax-3, Mumbai had passed an Order on 19 December 2014, transferring the assessment jurisdiction from Mumbai to Pune, the assessing officer at Mumbai had no jurisdiction over the file of the assessee on the date when the Order of assessment came to be passed on 24 December 2014 - HELD THAT:- Tribunal rejected the argument of the revenue that the AO would continue to exercise the jurisdiction in the case of the assessee inasmuch as PAN of the assessee came to be transferred only 29 December 2014. It was held that the transfer of PAN is consequential to the Order of transfer of jurisdiction and that it is a PAN, which follows the jurisdiction and not vice versa.
In our view, there is no illegality in the Order dated 9 August 2017, which has been passed by the Tribunal.
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2022 (12) TMI 1426
Assessees in default u/s 201/201(1A) - failure to deduct withholding tax against External Development Charges (EDC) paid to Haryana Urban Development Authority - order passed u/s 271C by respondent no.1 and the notice of demand of even date passed u/s 156 of the Act.
HELD THAT:- To be noted, the aforementioned penalty order and demand notice concern Financial Year (FY) 2013-2014.
Issue notice. Counter-affidavit(s) will be filed within the next ten days. Rejoinder(s) thereto, if any, be filed before the next date of hearing.
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2022 (12) TMI 1425
Revision u/s 263 against company dissolved/ non-existing - assessment in the hands of the representative/agent - Who may be regarded as agent u/s 163? - whether the CIT has power to pass an order u/s 163 of the Act? - HELD THAT:- As per provisions of section 163 it does not show the authority as to who can pass the order u/s 163 of the Act. Though section 246 of the Act which contains the provisions relating to the appealable orders before the CIT at clause (d) which mentions “An order made u/s 163 of the Act treating the assessee as agent of the non agent” which means that the order u/s 163 of the Act is to be passed by an authority below the rank of a commissioner, because if the commissioner passes the order, then it cannot be appealed against before the ld. CIT(A).
Section 253 of the Act contains the provisions relating to appeals to the appellate Tribunal and in the said section, there is mention of all orders passed under different sections of the Act which are appealable before the appellate Tribunal but there is no mention of order passed u/s 163 of the Act, which means that the commissioner has no power to pass an order u/s 163 of the Act.
Though the ld. DR had vehemently stated that the commissioner has concurrent jurisdiction/powers as that of the Assessing Officer, but in light of the aforesaid discussion, we do not find any merit in this contention of the ld. DR.
In light of the provisions of section 163 considered in light of the aforementioned discussion, order passed u/s 163 of the Act by the CIT, International-2 deserves to be quashed and treated as nonest. The ld. CIT assumed jurisdiction u/s 263 of the Act on the basis of order passed u/s 163 of the Act.
Since the very basis [order u/s 163 of the Act] has been removed, the super structure i.e. order u/s 263 of the Act must fall.
Original assessment against company[Non resident] now dissolved - As there is no dispute that the Assessing Officer framed assessment u/s 143(3) of the Act in the case of Monet Limited in the status of non-resident. In our considered opinion and understanding of law, since the principal has been assessed to tax than for the same income, there cannot be a separate assessment in the hands of the representative/agent, when the alleged representative/agent are also non-residents.
Principal Monet Limited has been extinguished. Then how can there be representative /agent of non-existing company. Provisions of section 163 of the Act are not akin to that of section 159 wherein a legal heir is substituted in place of a deceased assessee. This answers the third issue raised by Shri Pardiwalla.
CIT, International Taxation-2 passed an order u/s 163 of the Act without having any such authority and thereafter, wrongly assumed jurisdiction u/s 263 of the Act treating Cairnhill CIPEF Limited and Cairnhill CGPE Limited as representative /agent of Monet Limited which extinguished on 19.12.2018 and framed the impugned orders which do not have any support /backing of any provisions of the Act.
Assessee appeal allowed.
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2022 (12) TMI 1424
Reopening of assessment u/s 147 - validity of Order passed u/s 148A(d) and notice u/s 148 - period of limitation - petitioner as pleaded that proceedings were time barred as the window available to the respondent/revenue for issuance of fresh notices under the new regime was available only between 01.04.2021 and 30.06.2021 - Addition u/s 68 - HELD THAT:- Revenue, cannot but accept that insofar as the first aspect is concerned i.e., limitation, the same is covered by the judgment rendered by the coordinate bench in Suman Jeet Agarwal [2022 (9) TMI 1384 - DELHI HIGH COURT]
For second aspect revenue says that there is no specific assertion in the counter-affidavit. Therefore, quite clearly, the department has not taken a stand either way, on the assertion made that the said amount has been taxed in the hands of the creditor.
Thus, for the foregoing reasons we are inclined to set aside the impugned order passed under Section 148A(d) and notice issued u/s 148 of the Act.
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2022 (12) TMI 1423
Validity of reopening of assessment - notice issued u/s 148A(b) - period of limitation - as notice issued u/s 148 is time-barred as issued beyond the window available i.e., between 01.04.2021 and 30.06.2021 as per the provisions of Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 - HELD THAT:- The record shows that on two previous occasions, i.e., 10.10.2022 and 21.11.2022, opportunity was given to Mr Maratha to obtain instructions. Obviously, no instructions have been received by Mr Maratha.
Issue notice. Respondents accepts notice on behalf of the respondents (which includes CBDT/respondent no.3). A counter-affidavit will be filed within three weeks from today.List the matter on 21.07.2023
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2022 (12) TMI 1422
CIT(A) passed ex parte - Levy of penalty u/s 271(1)(c) - Denial of natural justice - Addition of unconfirmed sundry creditors - HELD THAT:- We are of the view that by dismissing the appeal without considering the issue on merits, Learned CIT(A) has failed to follow the mandate required in Sub Section (6) of Section 250 - it is also a well settled principle of natural justice that sufficient opportunity of hearing should be offered to the parties and no parties should be condemned unheard.
We set aside the impugned order of CIT(A) and restore the issue to the file of CIT(A) for re-adjudication of the issue after granting sufficient opportunity of hearing to the assessee and considering the submissions of the assessee - Appeal of the assessee is allowed for statistical purposes.
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2022 (12) TMI 1420
Exemption u/s 11 - objects of the trust or institution and the genuineness of its activities - List on 25th April, 2023 along with CUTTACK DISTRICT TENNIS ASSOCIATION [2023 (4) TMI 1228 - ORISSA HIGH COURT]. In the meantime, defects be removed.
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2022 (12) TMI 1418
“ESOP” (Employee Stock Options) deduction - not an allowable revenue expenditure u/s.37? - HELD THAT:- As in assessee’s case itself [2022 (9) TMI 239 - ITAT PUNE] involving the preceding twin assessment years 2010-11 and 2011-12, has already rejected the Revenue’s arguments as relying on CIT Vs. Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] - Thus, we see no infirmity in the order passed in allowing the claim of ESOP expenses under section 37(1) of the Act. The ground raised by the Revenue is rejected.
Disallowance of interest income on Non Performing Assets (NPAs) on accrual basis - HELD THAT:- It emerges during the course of hearing that the same is also no more res integra in light of hon’ble jurisdictional high court’s recent common order involving assessment years 2009-10 to 2011-12 in assessee’s case(s) itself [2019 (4) TMI 378 - BOMBAY HIGH COURT] declining the Revenue’s ground held that interest on NPAs cannot be taxed on accrual basis. It was noted that NBFC would be governed by the directions issued by the Reserve Bank of India and RBI directives provided that under certain circumstances, a loan or advance would be treated as NPA. The Court on the real income theory held that such interest would not be taxable. We notice that the decision of the Delhi High Court in case of Vasisth Chay Vyapar Ltd [2010 (11) TMI 88 - DELHI HIGH COURT] was carried in the appeal by the Revenue before the Supreme Court. The Supreme Court in the judgment reported in [2018 (3) TMI 56 - SUPREME COURT] approved the decision of the High Court and dismissed the appeal. Decided against revenue.
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2022 (12) TMI 1416
Disallowance u/s 14A r.w.r. 8D - suo motu disallowance made by assessee - HELD THAT:- As decided in Joint Investment [2015 (3) TMI 155 - DELHI HIGH COURT] that such a disallowance ought not to exceed the corresponding exempt income itself. The fact also remains that the assessee’s suo motu disallowance as already exceeds the sum which has nowhere been contested during the course of hearing. We, therefore, direct the AO to restrict the impugned section 14A r.w.r. 8D disallowance to a lump sum figure of Rs. 50,000/- each in both these assessment years
Disallowance of “ESOP” (Employee Stock Options) deduction u/s.37 - HELD THAT:- This tribunal’s very recent order in assessee’s case itself [2022 (9) TMI 239 - ITAT PUNE] rejected the Revenue’s arguments discount on ESOP being a general expense, is an allowable deduction u/s 37(1) of the Act during the years of vesting on basis of percentage of vesting during such period subject to upward or downward adjustment at the time of exercise of option as following case of Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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