- 2021 (9) TMI 902 - DELHI HIGH COURT
Assessment u/s 153A - Addition made u/s 68 on account of unexplained credits and u/s 69C on account of unexplained expenses - Whether any incriminating documents/materials had been found and seized during searches? - HELD THAT:- No specific ground that any incriminating material had been found during the search. The Tribunal’s finding that “It is an admitted fact that in the search action under Section 132 of the Act, no incriminating document/material was found and seized at the time of search and also subsequently” is correct and suffers from no perversity. Consequently, it is not open to the appellant to contend that incriminating documents/materials had been found and seized during searches. As in Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] has held that if no incriminating material is found during the course o....... + More
- 2021 (9) TMI 874 - BOMBAY HIGH COURT
Sales tax set off as deduction u/s 43B - whether the set off or adjustment amounts to deemed payment? - as per appellant, the sales tax set off represents that part of the purchase tax paid by appellant on purchase of raw materials and packing materials, which is allowed to be retained by it as the materials purchased are consumed in the manufacture of finished goods which are again liable to sales tax - HELD THAT:- Rule 41D of the Bombay Sales Tax Rules allowed incentive by way of exemption of sales tax to the extent of payment of sales tax on purchase of raw material used for the product. Rule 45(3) entitles the assessee to adjust or set off the amount in the return itself. It is a provision parallel to Sections 199 and 245 of the Income-tax Act creating a legal fiction. Therefore, this sum, which is subject to adjustment or set off, is....... + More
- 2021 (9) TMI 872 - BOMBAY HIGH COURT
Breach of the principles of natural justice - Glitch in e-filing portal of the Income Tax Department - Demand raised as disallowance under Section 14A and being unexplained loan under Section 68 - As argued assessment order has been passed without taking into consideration the issues faced by the taxpayers with the new e-filing portal of the Income Tax Department and without taking into consideration that the e-portal mentioned the response date was 21st July 2021 - HELD THAT:- As respondents themselves have admitted that there was a technical glitch, in our view, it is a fit case to set aside the assessment order and remand the matter for de novo consideration. Accordingly, the assessment order and consequential demand notice dated 8th July 2021 under Section 156 and notice of penalty also dated 8th July 2021 issued under Section 271(1)(c) of the Act are set aside and remanded for de novo consideration.
- 2021 (9) TMI 871 - BOMBAY HIGH COURT
Validity of assessment - Whether Assessment order passed without application of mind and on incorrect reasons - as per AO assessee not responded to any of the notices u/s 142(1) and the petitioner was not traceable at any of the addresses, and therefore, the order has been passed based on material which has been gathered and other information available on record - HELD THAT:- Petitioner had received a notice dated 22nd September 2019 under Section 143(2), to which there is no reference in the impugned order, seeking further details. Petitioner filed its reply dated 7th October 2019 to this notice as per the evidence available in the e-proceedings, response acknowledgment of the department. There is no reference to this reply in the impugned order. Thereafter petitioner received another notice dated 17th January 2020 under Section 142(1) o....... + More
- 2021 (9) TMI 867 - MADRAS HIGH COURT
Release the gold jewellery which were seized during the course of search - HELD THAT:- It is the failure on the part of the respective parties to the lis in placing the correct facts before this Court. If the order already passed on 04.11.2019 is allowed to be executed then prejudice would be caused to the interest of the Revenue. Once an error apparent is brought to the notice of this Court at the instance of the parties, and further such a fact is important for the purpose of determining the issues, then it is necessary to review the order passed. As brought to the notice of this Court that as per the seizure Mahazar, the jewellery seized from the writ petitioner's premises is valued more than ₹ 8 crores. Thus, the respondent-Department is directed to consider the applications filed by the writ petitioner on 13.11.2017 and on ....... + More
- 2021 (9) TMI 866 - MADRAS HIGH COURT
Long term capital asset as per Section 2(42A) - period of holding - Whether Tribunal was right in holding that the shares/debentures not listed in the recognized stock exchange could be treated as a long term capital asset as per Section 2(42A)? - HELD THAT:- The expression listed in a recognized stock exchange in India is only used for category of 'any other security' and not for the category of 'share held in a company'. Further after taking into consideration that the condition for the period of holding was curtailed from 36 months to 12 months by the Finance Act, 1987, it was only for 'share held in a company' - when the amendment by the Finance Act 1994 was brought in the statute so far as the category 'shares held in a company' was concerned, the same was not disturbed, albeit, new category was includ....... + More
- 2021 (9) TMI 829 - CALCUTTA HIGH COURT
Revision u/s 264 - Residential Status of Individual - how many days petitioner stayed on foreign soil - treating the assessee/petitioner as “Resident” for having stayed in India for 182 days during the relevant previous year as per Section 6 (1) (a) - tds u/s 192 - HELD THAT:- As evidence by way of certificate of his employer upon which petitioner wants to rely for his period of stay in question on foreign water was never produced or filed either before the Assessing Officer or before the Commissioner of Income Tax during the impugned proceeding under Section 264 of the Act in which the Commissioner of Income Tax has upheld the order of the assessment u/s 147/144 of the Act treating the petitioner as “Resident” and for the first time petitioner has produced the aforesaid certificate issued by his employer in this w....... + More
- 2021 (9) TMI 818 - BOMBAY HIGH COURT
Penalty u/s 271(1) (c) - substantial question of law - HELD THAT:- Appeal is admitted and substantial question of is law is framed. Penalty amount is paid, no demand is pending against assessee In the circumstances, pending consideration of appeal we deem it appropriate to stay operation of the impugned order in terms of prayer clause (a), which reads thus - “(a) That the operation of the impugned order dated 3/8/2016 (Exhibit-K) be stayed pending the present appeal is finally heard and disposed off.”. Interim application is accordingly disposed of in aforesaid terms. Interim application is accordingly disposed of". Interim application is accordingly disposed of.
- 2021 (9) TMI 785 - CHHATTISGARH HIGH COURT
Reopening of assessment u/s 147 - Individual identity of Section 148 as prevailing prior to amendment - applicability of the newly inserted provisions of Section 148A and the amendments brought inter alia w.e.f. 1.4.2021 - Covid lockdown in India - identity of Section 148 as prevailing prior to amendment and insertion of section 148A - grievance of the petitioner that the notice of like nature could have been issued till the cut off date 30.03.2021 as subsequent thereto the new Section 148A intervened before issuance of notice directly under Section 148 - HELD THAT:- The notification is made by the Ministry of Finance, Central Government considering the fact of lock down all over India, it can be always be assumed that the deferment of the application of section 148A was done in a control way. It is settled proposition that any modificati....... + More
- 2021 (9) TMI 781 - DELHI HIGH COURT
Rectification of mistake u/s 154 - seeking refund of the Income Tax (including interest) adjusted in excess of 20% of the disputed tax demand arising in the case of the Petitioner - HELD THAT:- As per mandate of law as well as the fact that refunds have been adjusted against outstanding tax demand by the Authority without following the procedure prescribed under Section 245 of the Act inasmuch as no notice or opportunity of pre-decisional hearing had been provided to the petitioner prior to such adjustment of refund, this Court is of the opinion that the petitioner is entitled to refund of adjustments made in excess of 20% of the disputed tax demands. Consequently, this Court directs the respondent to verify the facts stated in the two writ petitions and if it finds them to be true and correct then to refund the amount adjusted in excess ....... + More
- 2021 (9) TMI 780 - BOMBAY HIGH COURT
Removal of office objections - HELD THAT:- We find that Applicant has devoted four pages only to give details of certain connected proceedings which were pending before the Tribunal. Applicant has devoted three paragraphs to comply with the directions passed by this Court in its order dated 10th August, 2021. In paragraph 5, the Applicant has made a general statement that incumbent AO came to know that the Appeal filed by the department on the issue of existence of M.N. Navale Bigger HUF, the Hon’ble High Court had dismissed the Appeal for want of removal of office objections - We are informed that Mr. Vipul Bajpayee is junior standing counsel today for the department. Moreover, the Applicant’s explanation for non removal of objection contains only conjectures. He says that in between “change in the standing counsel of t....... + More
- 2021 (9) TMI 774 - MADRAS HIGH COURT
Reopening of the assessment u/s 147 and issuance of notice u/s 148 - eligible reason to believe as mandated u/s 147 - reopening of beyond the period of four years and within a period of six years - TDS u/s 195 - HELD THAT:- Reasons stated in the said proceedings dated 11.04.2014 reveals that no TDS has been made on the Business Development Commission and the same needs to be disallowed as per Section 40(a)(ia). The objections submitted by the writ petitioner on 29.04.2014 in detail was also disposed of by the respondents in vide proceedings dated 07.10.2014. In the said proceedings, the respondents have clearly stated that "the matter of non-deduction of tax on business development commission paid to a non-resident was not looked into. This matter was not discussed in the Assessment Order.” Further, relying on Section 9(1), the....... + More
- 2021 (9) TMI 773 - MADRAS HIGH COURT
Disallowance u/s 40(A)(3) - cash payments were made to the vendors beyond the threshold limit - CIT(A) did not agree with the assessee and confirmed the disallowance - HELD THAT:- For assessment year 2007-08 tribunal tested the correctness of the decision of the CIT(A). The assessee was a builder and developer and the lands purchased by the assessee were in the nature of stock-in-trade and certain purchases were made in cash and such purchases by cash would be hit by Section 40A(3) of the Act unless otherwise exempted under Rule 6DD of the Rules. Tribunal noted that the assessee was a business man and the cash payments were done for the purchase of lands and also took note that in majority of land dealings, land owners would insist upon payment of money in cash. Furthermore, the Tribunal also noted that the payments were duly recorded in ....... + More
- 2021 (9) TMI 736 - KERALA HIGH COURT
Nature of expenditure - expenditure for purchasing equipments such as wheel balancer, wheel aligner, wheel changer and tyre changer for the use by dealers of assessee at Apollo Tyre World showroom - ownership of the equipment purchased - expenditure is in the nature of purchase of equipment or expenditure incurred by the assessee for refurbishing its showroom - revenue or capital expenditure -whether the Tribunal is correct in treating the expenditure as capital expenditure on the ground that ownership of these assets was retained by the assessee? - HELD THAT:- The findings of fact recorded by the Tribunal are based on record and warranted. The auditor’s report is referred to by the Assessing Officer for coming to the conclusion that the expenditure made by the assessee towards purchase of equipment, such as wheel balancer/wheel ali....... + More
- 2021 (9) TMI 725 - CALCUTTA HIGH COURT
Validity of order of Settlement Commission - acceptance of additional income disclosed by the assessee - ambit and scope of interference by the High Court in its Constitutional writ jurisdiction under Article 226 of the Constitution of India - proof of any legal infirmity in decision making process in course of impugned income tax settlement proceeding - HELD THAT:- We am not inclined to interfere with the impugned order of the Settlement Commission in this Writ Petition and dismissing the same for the following reasons: i) Petitioner/Income Tax authorities have failed to make out any case in this Writ Petition that the learned Settlement Commission has acted in any manner contrary to or in violation of any provision of law in course of impugned settlement proceeding or in passing the impugned order or that the same is not legal and valid....... + More
- 2021 (9) TMI 715 - MADRAS HIGH COURT
TDS u/s 195 - payments made to two companies non resident - Tribunal was right in deleting the disallowance made by the AO holding that the amendment to Section 9(1)(vi) introduced by Finance Act, 2012 with retrospective effect from 01.06.1976 is not applicable and therefore no TDS needs to be deducted? - HELD THAT:- Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence Private Limited v. Commissioner of Income Tax and another [2021 (3) TMI 138 - SUPREME COURT] has held in favour of the assessee. Deduction u/s 10A - expenses incurred in relation to travel in foreign country and communication charges are to be allowed both from the Export turnover and Total turnover which is contrary to the Statute - unrealized foreign exchange was to be allowed both from the Export turnover without making corresponding deducti....... + More
- 2021 (9) TMI 714 - DELHI HIGH COURT
Faceless Assessment Scheme u/s 144B - No prior show cause notice as well as draft assessment order have been issued - HELD THAT:- Since in the present case no prior show cause notice as well as draft assessment order have been issued, there is a violation of principles of natural justice as well as mandatory procedure prescribed under “Faceless Assessment Scheme” and as stipulated in Section 144B of the Act. When there is a violation of principles of natural justice, the availability of an appellate remedy does not operate as a bar to the maintainability of the writ petition. In the impugned Assessment Order, Demand Notice and Notice for Penalty dated 23rd April 2021 issued under Section 143(3), Section 156 and Section 274 read with Section 271AAC(1) of the Act are set aside and the matter is remanded back to the Assessing Officer, who shall issue a show cause notice as well as draft assessment order and thereafter pass a reasoned order in accordance with law.
- 2021 (9) TMI 712 - CALCUTTA HIGH COURT
TDS u/s 194-O - Writ petitioner e-commerce operator on being aggrieved by newly inserted provision of Section 194-O - relief sought of declaration that under the said provision petitioner is not required to deduct tax and deposit under the provisions of Section 194-O where sale of goods or provision of services does not take place and/or through the petitioner company platform and/or purchaser of the goods or recipients of the services does not make payment to the petitioner company or the sale of goods or provision of services and in case of reverse action and when the petitioner’s client uses the software sold/licenses by it to them or procuring their requirement of goods and services and alternatively to declare the aforesaid provision as ultra vires and unconstitutional - HELD THAT:- As respondents could not justify the inaction....... + More
- 2021 (9) TMI 709 - KERALA HIGH COURT
Revision u/s 263 - final assessment order made pursuant to directions of DRP u/s 144C read with Section 143(3) - whether the draft assessment order communicated to assessee u/s 144C of the Act is an order amenable to revision u/s 263? - HELD THAT:- It is well established by a series of decisions that the fulcrum on which the power u/s 263 is exercised, rests on the orders made under the Act, being erroneous and the orders prejudicial to the interest of the Revenue. Let us juxtapose the scheme u/s 144C of the Act with an order being erroneous and prejudicial to the interest of Revenue, and deliberation of scheme in this behalf, we observe that, whether the draft assessment order is erroneous or not is examined by DRP and the element of prejudice insofar as the Revenue is concerned does not arise visa- vis the draft assessment inasmuch as n....... + More
- 2021 (9) TMI 708 - KERALA HIGH COURT
Deduction of advances written off - Deduction being advances paid to Continental Group of Companies for supply of machinery and written off during the year - whether allowable capital expenditure? - HELD THAT:- The assessee has filed appeal for the Assessment Year 2003-04 [2021 (9) TMI 736 - KERALA HIGH COURT] and question no.4 in the said appeal relates to disallowing the deduction of advances written off by the assessee. The Counsel appearing for the parties state that the same reason could be adopted for answering the instant question as well. For the reasons recorded in question no.4 therein, the instant question is answered in favour of the Revenue and against the Assessee. Setting off long term capital loss on sale of shares and units of mutual funds against the long term capital gain earned on the sale of land - application of Sect....... + More
