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Income Tax - High Court - Case Laws
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- 2019 (9) TMI 637
Review petition - unexplained cash - disclosure about the source of the cash seized by the police - Warrant of Authorization under Sub-section (1) of Section 132A - HELD THAT:- None of grounds raised for the purpose of review are tenable in law. For the purpose of review, the error should be palpable or to put in other words, it should be apparent on the face of the record. Mr. Shah, the learned senior counsel has virtually argued the whole matter. The same is not permissible in law. It is not in dispute that cash worth ₹ 2,45,00,000/- came to be seized from the two employees of the courier company and it is also not in dispute that the cash belongs to the writ applicant. In the course of the hearing of the writ application, it has been admitted that although it was asserted before the authority that the cash was withdrawn from the ....... + More
- 2019 (9) TMI 636
Claim for registration u/s 12AA - division of the property - whether Constitution/ Bye-laws of the Trust is not having any provision in relation to disbursement of balance funds in the eventuality of the dissolution of Trust ? - HELD THAT:- This Court is of the opinion that the absence of dissolution clause or condition - as rightly contended by the assessee, is an uncertain future event. Further-more, given that the property is vested in a public charitable trust, it is always open to the concerned party - including the Revenue, to approach the Civil Court for a remedy under Section 91-92 of the Code of Civil Procedure. Court noticed the situation contemplated by the Commissioner of Income Tax (Exemption), has now taken care of in any way under Section 115(TD)(c) brought into force w.e.f. 1st June, 2016. Decided in favour of assessee and against the revenue.
- 2019 (9) TMI 635
Deduction u/s 80P(4) - assessee-society is registered under the provisions of the TNCS Act - whether activity of the appellant is that of finance business and cannot be termed as cooperative society? - definition of the word 'members' - HELD THAT:- The substantial question of law framed for consideration was considered by a Division Bench of this Court in the case of The Principal Commissioner of Income Tax, Salem vs. M/s.S-1308 Ammapet Primary Agricultural Cooperative Bank Ltd. [2019 (1) TMI 116 - MADRAS HIGH COURT] where held Definitions of the expressions 'members' and 'associate member' under the TNCS Act held that an 'associate member' is also a 'member' in terms of Section 2(16) of the TNCS Act. Furthermore, the Assessing Officer himself found that the associate members are also admitted as me....... + More
- 2019 (9) TMI 634
Condonation of delay - delay is of 20 years - as per applicant she entrusted her brief to her advocate and her advocate did not take any steps to pursue the matter - HELD THAT:- Mr. Motwani, learned counsel for the applicant could not point out before this Court that at any point of time from 18.10.1997, when the decree, which is sought to be challenged before this Court, was passed, the applicant even remotely tried to contact her advocate to know the fate of litigation. In the application, it is stated that she entrusted her matter to Mr. Vilas Mate, of Tumsar. She never met with Mr. Bhole, Advocate. According to the learned counsel for the applicant, Mr. Bhole might, on instructions from Mr.Vilas Mate, have appeared before the Court below. It is very easy for a litigant to make allegations against an advocate behind his back. If the ap....... + More
- 2019 (9) TMI 615
Scaling down of the demand of the Income Tax Department - The widow of the original respondent no.1 Aarti Abhay Narottam had also expired. His sole surviving legal heir is respondent no.1(a) who has since been brought on record. The Custodian filed Report no. 03 dated 7th March, 2007 seeking directions from this Court for distribution of asset - Attachment of properties - HELD THAT:- Erroneous and questionable standards were adopted. On one hand the Special Court appointed Auditors report has been relied upon for some facts yet the conclusion of the auditor that the amounts reflected in the accounts pertain to liability has not been accepted /dealt with. The tax department was unable to accept the conclusion of the auditors, that the amount in the account of Abhay Narottam were only liabilities. There is no explanation forthcoming from th....... + More
- 2019 (9) TMI 614
High Pitched Scrutiny Assessment - challenging the proceedings of the fourth respondent with consequential direction to the fourth respondent to pass speaking order - disallowing a portion of restricted project grants received from Compassion international - Petitioner is a Charitable Society registered under Section 12AA - HELD THAT:- Local Committee, after considering the complaint filed by the petitioner, formed an opinion that the assessments for the subject matter Assessment Years cannot be termed as high pitched. As rightly pointed out by the learned Senior Standing Counsel for the respondents, the mechanism provided to approach the Local Committee is not in lieu of the appellate remedy and therefore, the rights and contentions of the assessee before the Appellate Authority in their appeal can very well be considered and decided by ....... + More
- 2019 (9) TMI 613
Commission on the accommodation entries provided by assessee - ITAT reduced the percentage from 2.25 % to 0.5% in second round of litigation - HELD THAT:- The impugned order of the ITAT shows that this is a second round of litigation. ITAT has explained how the fixing of the percentage at 2.25% by the AO was based on noting of some loose sheets which were seized during a search operation. The reliability of these notings are themselves in dispute. ITAT has on a consideration of the entire facts and circumstances and considering that different rates are charged in different transactions formed the view that 0.5% should be taken as a reasonable rate of profit/commissioner in such activities. This Court fails to appreciate how the said order of the ITAT gives rise to any substantial question of law. Moreover, this is the second round of litigation and it has to end at some point. The Court sees no reason to interfere with the impugned order of the ITAT.
- 2019 (9) TMI 612
Refund of TDS along with interest withheld - Petitioner company opened a virtual bank account - HELD THAT:- Petitioner would submit that the status in the portal shows that the refund is processed but withheld. For procedural infractions, the petitioner company is facing harassment to avail the refund of TDS. On instructions Revenue submits that alternative arrangements are made to remit the refund either through RTGS/NEFT or by issuing a Cheque/Demand Draft to the petitioner-company. Writ petition stands disposed of directing the respondents to refund the amount of ₹ 1,33,30,196/-(Rupees One Crore Thirty Three Lakhs Thirty Thousand One Hundred and Ninety Six Only) to the petitioner along with interest to which it is entitled to, in an expedite manner.
- 2019 (9) TMI 561
Stay of demand - petitioner is ready to make the deposit for the purpose that the cash credit account of the petitioner may be released from attachment - HELD THAT:- The offer given by the learned counsel for the petitioner, prima facie, appear to be genuine to us, in view of the fact that the cash credit account of the petitioner has already been attached, which may be causing hindrance in the business of the petitioner. Accordingly, we direct the petitioner to make the deposit of ₹ 30,00,000/- and upon the deposit of this amount, the attachment order dated 24.06.2019 attaching the cash credit account of the petitioner shall remain in abeyance, till the period one week, and if revision / review is filed against the order dated 08.04.2019 within the same period, the attachment order shall be guided by the final order passed by the C....... + More
- 2019 (9) TMI 560
Grant credit for the tax deducted at source while making payments to the petitioner - First respondent referring to written instructions dated 18.07.2019 states that the first respondent has reexamined the issue, a decision taken for granting refund and now steps are taken to transfer the amount to the credit of petitioner's bank account. According to him, the grievance is substantially redressed by the first respondent himself. Therefore, the cause does not survive. Adv. Smt. Krishna K. requests the Court to place the statement on record and dispose of the writ petition. HELD THAT:- The writ petition is disposed of by accepting the statement made on behalf of the first respondent, The petitioner, if does not get the relief within eight weeks from today, the petitioner is given liberty to file an application for recalling the instant judgment.
- 2019 (9) TMI 559
Levy of penalty u/s 271(1)(c) - as assessee is liable for payment of Minimum Alternate Tax (MAT) under Section 115JB, however he had neither filed Form 29B, nor paid taxes as required to be paid under Section 115JB - HELD THAT:- Admittedly, there is no allegation against the assessee before us that they had concealed particulars of their income. However, the allegation is inaccurate particulars have been furnished. AO while completing the assessment vide order dated 01.12.2011, does not record any finding that the particulars given by the assessee in the return of income is incorrect or inaccurate, but the conclusion of the AO is based upon an interpretation of the legal position and held that tax is payable under Section 115JB. The assessee's specific case was that they were advised to file the return of income in a particular fashio....... + More
- 2019 (9) TMI 558
TP Adjustment - comparable selection - Tribunal excluded M/s Accentia Technologies Limited, M/s TCS E-Serve Ltd. and M/s TCS E-Serve International Ltd. from comparables for determining the ALP - HELD THAT:- Revenue was unable to demonstrate that the order of the Tribunal suffers from any illegality or perversity as it had failed to consider or appreciate any relevant circumstances for excluding these three comparables, namely, M/s. Accentia Technologies Ltd., M/s. TCS E-Serve Ltd. and Ms. TCS E-Serve International Ltd. for determining the ALP as functionally dissimilar with that of assessee. It cannot be held that the aforesaid findings recorded by the Tribunal in the appeal warrant any interference by this Court.
- 2019 (9) TMI 557
Reopening of assessment u/s 147 - deduction u/s 54 - allegation that thee property which was named as 'Gupta House' was actually an 'industrial plot' and not a 'residential house' - as per the Tribunal the AO did not have 'reasons to believe' that income chargeable to tax had escaped assessment and remand back the case to CIT for fresh adjudication - HELD THAT:- It is clear that an illegal set off was sought to be claimed by the respondent (which probably succeeded because of the misleading appellation of the property in the dispute viz. 'Gupta House'). We set aside the finding of the Tribunal that there were no reasons for Assessing Officer to believe that income chargeable to tax had escaped assessment. Facing this, respondent has argued that in the penultimate paragraph of the impugned order, the....... + More
- 2019 (9) TMI 556
Maintainability of appeal - low tax effect - entire tax effect in the instant writ appeal is less than a sum of ₹ 2 Lakhs - HELD THAT:- The writ petition has been filed by the assessee, in view of their being no remedy provided under the Income-tax Act to challenge the impugned order under the provisions of the Income-tax Act. In the absence of an alternative remedy, the writ jurisdiction was invoked. In case an alternative remedy was provided for under the Income-tax Act, in that event, an appeal would have to be filed, which would then be covered by the monetary limit. Only because an alternative remedy is not provided and the assessee was compelled to file a writ petition, the Revenue cannot take advantage of it. Therefore, for the Revenue to contend, that they are protected by the Circular in writ matters may not be correct. The....... + More
- 2019 (9) TMI 555
Warrant of Arrest issued by Recovery Officer - notice to show cause not issued - prescribed procedure was not followed - HELD THAT:- no order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause as to why he should not be committed to civil prison, unless the Tax Recovery Officer is satisfied for the reasons which are mentioned in clause (a) and (b) of sub-rule (1) of Rule 73 of Schedule II of the Act. In the instant case, the impugned notice dated 21.11.2017 does not fulfill the requirements prescribed under Rule 73 (1) of Schedule II of the Act, in as much as, no specific show cause notice has been given to the petitioner asking him to show caus....... + More
- 2019 (9) TMI 502
Deduction of interest - allegation that assessee had lent money from borrowed funds to the husband - principles of commercial expediency - diversion of funds - HELD THAT:- No allegation against the assessee of diversion of funds, considering the relationship between the assessee and her husband, who had established the dhall mill and that the assessee is at an advantage in obtaining finished product from her husband's dhall mill and she will be assured of time delivery of the processed dhall and assured of quality processing and obviously at discounted rates. There is no endeavour made by the Tribunal to examine the specific stand of the assessee that the assessee had interest free funds. CIT(A) decided the case against the assessee based on its own personal opinion without any material available on record thus the finding rendered by....... + More
- 2019 (9) TMI 501
Denial of an opportunity to cross examination of witness - relief upon the statement of the person, claiming that Cash was received from the assessee, additions were made - non-supply of statements so recorded - unaccounted investment - HELD THAT:- Specific grievance was made about the willingness to cross-examine - The objection taken on behalf of the Respondent needs to be negated. In order to support their contention about the right to cross-examine witness, the leaned Counsel for the Appellant relied upon the Judgment delivered by in case of Andaman Timber Industries V/s Commissioner of C. Ex., KolkataII, Decided [2015 (10) TMI 442 - SUPREME COURT] . There was a proceedings relating to the payment of central excise. The Assessee made grievance about denial of an opportunity to cross-examine the buyers. Denial of such an opportunity is....... + More
- 2019 (9) TMI 480
Reopening of assessment u/s 147 - non deciding the objections or issuing any show cause notice - non passing speaking order on the objections raised by the petitioner - HELD THAT:- When action was initiated u/s 148 the assessee had filed the objections which were duly acknowledged by the portal of the revenue, but without deciding the objections or issuing any show cause notice, AO had passed impugned order and issued a demand notice under Section 156. The stand of the revenue is that those objections never reached the AO. Once the objections were duly uploaded on the portal of the revenue, this argument would not be available to the revenue. Petitioner relied upon the decision of various High Courts and Apex Court in “GKN Driveshafts (India) Ltd. vs. ITO [2002 (11) TMI 7 - SUPREME COURT], Garden Finance Ltd. vs. Asstt. Commissioner....... + More
- 2019 (9) TMI 479
Entitlement to weighed deduction u/s 36 (1) (iia) - income of employees chargeable under the head ‘salaries’ before allowance of standard deduction under Section 16 to be considered - HELD THAT:- If you compare the language employed in Section 36(1)(iia) proviso, it uses the expression “chargeable under the head salaries” while qualifying salary. Section 16 provides for certain deductions to be made to arrive at the salary “chargeable under the head salaries”. It is quite plain that the legislature intended to use the phrase “chargeable under the head salaries” for computation of income under Section 36 (1) (iia) in the same way as under Section 16. Therefore, the first question is answered in the negative in favour of the assessee and against the revenue. Depreciation of building machinery ....... + More
- 2019 (9) TMI 476
Reopening of assessment u/s 147- invoking statutory remedy available - HELD THAT:- We are not inclined to entertain the present writ petition insofar as the challenge to the order dated 18.12.2018 is concerned. The petitioner has already invoked the statutory remedy available to it by preferring its appeal against the assessment order dated 27.12.2018 before the CIT (A), and it shall be open to the petitioner to assail the issuance of notice u/s 148; the reasons for re-opening furnished by the AO; as well as the order dated 18.12.2018 disposing of the petitioner’s objections to the re-opening of the objections u/s 148. Insofar as the petitioner’s prayer that the respondent Department should lay down binding guidelines for proper examination of tax evasion complaints by field officers, prior to taking action on such complaints ....... + More
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