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Income Tax - Case Laws
Showing 201 to 220 of 503 Records
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2013 (1) TMI 767 - ITAT CHENNAI
Disallowance of expenditure u/s 10A - foreign currency expenditure and telecommunication expenditure - Held that:- The assessee eveloped software on contract basis according to the agreement and handed over the same to the customer - expenditure incurred was for development of software according to the software development agreement entered into between the client and the assessee and therefore the expenses incurred in that connection in foreign currency cannot be excluded from the export turnover - Decided im favor of assessee
Telecommunication expenditure incurred in Indian currency should not be excluded from the export turnover as per the judgment of the Income-tax Appellate Tribunal, Hyderabad Bench in the case of Patni Telecom P. Ltd. vs ITO, [308 ITR (AT) 414] - Decided im favor of assessee
Can the losses of eligible units be allowed to set off against other taxable profits u/s 10A - Held that:- held that the current year’s profit of the eligible units should not be reduced by setting off of the brought forward losses of earlier years even though relating to eligible units - The AO has to give deduction under section 10A on eligible profits of the current AY - Decided im favor of assessee
Disallowance of 2% of exempt income treating as expenditure u/s 14A - Held that:- the disallowance of 2% made by the assessing authority is reasonable - also the profit for the purpose of section 10A will be enhanced to the extent of the above disallowance - partly decided in favour of the assessee
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2013 (1) TMI 765 - ITAT CHENNAI
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... ... ..... below. It is an admitted fact that the assessee has sold the property in question to one Shri V. Subramaniam of M/s. Ramani Realtors for a consideration of 39,63,900/- and stamp duty was paid on the above amount. But it was submitted before the Assessing Officer that he has received only 25,60,000/- on the ground that it was a distress sale. The Assessing Officer by invoking section 50(C) adopted the sale value of the property at 39,63,900/- and calculated the long term capital gains accordingly. There is nothing on the record to show that the assessee has disputed the sale consideration of 39,63,900/- adopted for the purpose of stamp duty and the assessee has not made any objection to adopt the above price. Therefore, the Assessing Officer has rightly invoked section 50(C) and the same was upheld by the CIT(Appeals). We find no infirmity in the order passed by the CIT(Appeals) and accordingly confirm the same. 7. In the result, the appeal filed by the assessee is dismissed.
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2013 (1) TMI 763 - ITAT MUMBAI
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... ... ..... unds of appeal and also the circumstances where assessment order has been made against which the appeal is filed without giving sufficient opportunity to the assessee to adduce evidence relevant to the grounds of appeal. If any of such circumstances exist then Ld. CIT(A) will be entitled to admit the same by recording the reasons in writing for admission of the same. Further requirement is that additional evidences should not be admitted without giving the AO a reasonable opportunity to examine such evidences or to produce any evidence or documents in rebuttal of that evidence. In our considered opinion all these requirements of Rule 46A have been completed with by Ld. CIT(A) and his order cannot be said to be in violation of rule 46A. There being no violation of Rule 46A, finding no merit in departmental appeals, we dismiss all these appeals. 8. In the result, all the appeals filed by the revenue are dismissed. Order pronounced in the open court on the 29th day of Jan 2013.
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2013 (1) TMI 761 - GUJARAT HIGH COURT
Disallowance of commission expenses - disallowance of depreciation on tangible assets - Held that:- it was not open to the department to determine the expenditure the assessee - As per the decision of CIT, Andhra Pradesh Vs. Dhanrajgirji Raja Narasinghirji [91 ITR 544] - books of accounts were maintained by the assessee - merely because in the subsequent year more expenses are incurred by the assessee disallowance was not justified - decided in favor of assessee
Held that:- As per the tax appeal No. 509 of 2012 - no question of law for onsideration arises and the same is dismissed
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2013 (1) TMI 758 - ITAT AHMEDABAD
Principle of Consistency - Receipt of license fee towards canteen and staff quarters rent was chargeable under the head “Income from business" by AO in previous years. It was contended that in the present year, it should be taxed accordingly as per consistency principle - HELD THAT : - It cannot be held that if a mistake is committed by the AO in earlier years, the same should be perpetuated. Thus, this rental income is taxable under the head income from house property.
Repairs and Insurance of Machinery u/s 31(i) - CIT(A) deleted the disallowance made by the AO being the expenses of reconditioning of body and engine expenses. It was contended that the decision was in favour of assessee in previous assessment years. HELD THAT : - Expenditure had been incurred to “preserve and maintain” an already existing asset, and the object of the expenditure was not to bring a new asset into existence or to obtain a new advantage. CIT (A)'s decision was upheld.
Decision in the cases of COMMISSIONER OF INCOME-TAX VERSUS SARAVANA SPINNING MILLS P. LTD. [2007 (8) TMI 16 - SUPREME COURT] and COMMISSIONER OF INCOME TAX VERSUS MIHIR TEXTILES LTD. [2008 (5) TMI 282 - GUJARAT HIGH COURT], relied upon.
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2013 (1) TMI 756 - ITAT NAGPUR
Disallowance of deduction u/s 48(i) - amount paid to 3 nieces towards settlement of their interest in the property - Held that:- Considering the decision of Ashok SOI vs. CIT [2004 (10) TMI 34 - DELHI High Court] for the proposition that when an assessee paid certain amounts to someone to settle the claims, who had no right, title or interest in the properties in question, they cannot be considered to have been paid wholly and exclusively in connection with the transfer of property and the amount cannot be claimed as deduction u/s 48(i) of the Act. The ratio is applicable in the instance case as the three nieces to whom the assessee had paid an amount of ₹ 15 lacs did not have any legal claim over the property and therefore, the amount paid to them cannot be said to have been made in connection with transfer of the property. The decision relied upon by the assessee in the case of CIT vs. C.V. Soundararajan [1983 (8) TMI 14 - MADRAS High Court] has no application as there is no relinquishment of any right for which the amount is claimed to have been paid. Therefore, we are of the considered opinion that the decision of CIT (A) in upholding the disallowance made by the AO does not call for any interference. - Decided against assessee.
Addition made by AO u/s 69 - Held that:- As extracted from the orders of the CIT(A) and AO provide that it is the assessee’s own submission that the sum of ₹ 20 lakhs was paid in cash and the same in support of his claim of deduction u/s 54 of the Act. Agreement to sale is a valid document and the assertions of the parties relating to cash payment of ₹ 20 lakhs is true considering their signatures in the presence of the witness. We are in agreement with the views of the CIT(A)/AO and the contents of the clause relating to manner of payment have to be either correct or incorrect and they cannot be partly correct (condition (ii); and partly incorrect (condition (i) as being attempted by the assessee. Will the flat-seller sign on any agreement affirming the receipt of cash of ₹ 20 lakhs when they same is not actually received by him? In our opinion, the answer is negative. Therefore, we are of the opinion that the order of the CIT (A) on this issue needs no interference. Regarding the argument that the addition if any has to be considered only for the AY 2008-09, the same does not pertain to the year under consideration and the shall be examined as when the ground is raised in appropriate AYs. In any case, it is a settled principle that the same amount of ₹ 20 lakhs cannot be added twice in two different AYs when the flat in question is singular in number - Decided against assessee.
Deduction claimed u/s 48(i) - CIT(A) allowed claim - Held that:- It is true that the three sisters of the assessee possess residuary rights in the property, which was sold by the assessee and therefore, they are entitled to the part consideration and therefore, the said payments of ₹ 45 lakhs made to three sisters at the rate of ₹ 15 lakhs each, is the expenditure wholly and exclusively in connection with the transfer of the property. Considering the above settled position in the judgment of Hon’ble jurisdictional High Court in CIT vs. Shkuntala Kantilal [1991 (3) TMI 123 - BOMBAY High Court] we are of the opinion that the order of CIT (A) does not call for any interference. Accordingly, ground no.1 raised by the Revenue is dismissed and the issue is decided in favour of the assessee.
Deduction claimed u/s 54EC - investment in purchase of Capital Gain Bonds of Rural Electrification Corporation Ltd. - CIT(A) allowed claim - Held that:- As per assessee, he could not invest in REC Bonds within the stipulated period of six months because of non-availability of REC Bonds till 27.1.2007. In our opinion, assessee was prevented by a reasonable cause from purchasing the REC Bonds within six months period from the date of sale consideration by a reasonable cause of non-availability of Bonds. Therefore, we upheld the order of the CIT (A) on this issue and the decision of CIT (A) does not call for any interference - Decided in favour of the assessee.
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2013 (1) TMI 744 - ITAT HYDERABAD
Exemption claimed u/s 54 denied - whether the assessee cannot claim exemption both u/s 54 and 54F for investment in the same house - Held that:- Sec. 54 and 54F apply under different situations. While sec. 54 applies to long term capital gain arising out of transfer of long term capital asset being a residential house, sec. 54F applies to long term capital gain arising out of transfer of any long term capital asset other than a residential house. However the condition for availing exemption under both the sections is purchase or construction of a new residential house within the stipulated period. There is also no specific bar either u/s 54 and 54F or any other provision of the Act prohibiting allowance of exemption under both the sections in case the conditions of the provisions are fulfilled. In the facts of the present case, since long term capital gain arises from sale of two distinct and separate assets viz., residential house and plot of land and the assessee has invested the entire capital gain in purchase of a new residential house, in our view, he is entitled to claim exemption both u/s 54 and 54F of the Act. We therefore direct the AO to delete the addition of ₹ 44,05,302/-. - Decided in favour of assessee.
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2013 (1) TMI 737 - ITAT DELHI
Addition on account of illegal transportation of stones resulting into undisclosed sales - Held that:- Issue of expenses under the head of transportation and labour charges for obtaining illegal stock was remitted to the file of AO for a fresh consideration in accordance with the appellate orders of the District Magistrate, Nainital on this issue. Thus remit the issue to the file of AO to consider the same afresh after examining and considering the appellate orders of the higher authorities on this issue. The matter for adjudication is pending before the Divisional Commissioner, Nainital. Both the authorities have totally relied upon the order of the DM, Nainital. Since the same is pending before the DM, Nainital, the same cannot be said to be final and conclusive. Accordingly, respectfully following the above precedent, we remit the issue to the file of the Assessing Officer to consider the same afresh, after examining the appellate orders of DM, Nainital on this issue - Decided in favour of assessee for statistical purposes.
Disallowance of compounding fees imposed by the govt. on illegal transportation of stones - Held that:- As issue of allowance of compounding fee of ₹ 28,21,615/- was not raised before the authorities below and is being raised first before the tribunal. In our considered opinion, this matter is related to the issue raised in appeal and we deem it appropriate to remit the file to the Assessing Officer, since other issue has been remitted to him. Accordingly, this issue is also remitted to the file of the Assessing Officer.- Decided in favour of assessee for statistical purposes.
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2013 (1) TMI 734 - DELHI HIGH COURT
Entitlement to the benefit of Section 10B - Held that:- CIT(A) and the Tribunal had, in the present case, not gone into the merits of the alternative claim for entitlement under Section 10A. This fact is apparent from a reading of the order of CIT(A) as well as that of the Tribunal in the order impugned. In the circumstances, the Tribunal shall consider the relevant documents on the basis of the claims and ascertain whether the applicant is entitled to the benefit of Section 10A, as claimed. The judgment and order of this Court dated 17.09.2012 is accordingly modified; the Tribunal shall proceed to pass appropriate orders after hearing both parties.
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2013 (1) TMI 733 - ITAT CHENNAI
Revision u/s 263 - CIR(A) directed ao to allow depreciation on windmill at 40 per cent on windmill - Held that:- While completing the assessment under section 143(3) of the Act, the Assessing Officer has not discussed about the issue of depreciation of windmill, may be for the reason that he was satisfied that the assessee is eligible for depreciation and, therefore, since he has not disallowed any part of depreciation, there was no need for any discussion in the assessment order.
Ledger account of the windmill in the books of the assessee we could see that the assessee has made initial payment of ₹ 13.50 lakhs to the supplier and the rest of the payments were made by the Indian Overseas Bank to the supplier directly from October 6, 2006 onwards. The TNEB has issued a letter dated September 30, 2006 stating that generation of power by the windmill has been effected on September 29, 2006. The Department has not disputed the certificate issued by the TNEB that the windmill effected supply on September 29, 2006. In the absence of any material placed before us by the Department to show that the assessee has not filed all these details before the Assessing Officer at the stage of completion of assessment under section 143(3) of the Act, it can be said that the Assessing Officer has examined all these documents and came to the conclusion that the windmill has been erected and commenced generation of power on September 29, 2006 and, therefore, the claim of the assessee is in accordance with the provisions of the Act. In the circumstances, it can be said that the Assessing Officer has taken one of the two views possible in allowing the claim for depreciation on windmill and in such circumstances, it cannot be said that the order passed by the Assessing Officer is erroneous and prejudicial to the interests of the Revenue as held by the hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000 (2) TMI 10 - SUPREME Court ] . Thus revision order quashed - Decided in favour of assessee.
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2013 (1) TMI 722 - ITAT MUMBAI
Fringe benefit tax on free/concessional tickets issued to the employees for private journeys - Held that:- As it is not in dispute that the assessee has provided free/concessional tickets to its employees during the year under consideration, it is liable for fringe benefit tax.
Though section 115WC(2)(a) contains the provisions for computing the cost of such benefit but in our considered view that method cannot be applied to the facts of the present case for the simple reason that the cost at which the benefits are provided to the employee cannot be equated with the cost provided by the employer to the general public. To this extent, we agree with the submissions of the counsel that the nearest available, logical and acceptable method is to value the benefit as per the cost assigned for provisions for the frequent flyer programme in the books of account. More so, because such provision has been accepted by the Department in the assessee' s own case from the assessment year 1999-2000 till assessment year 2005-06 and as this method is scientific and has attained finality in due course of time since the assessment year 1999-2000, keeping in mind that the members of the frequent flyer programme scheme are from the general public. Thus restore this issue back to the files of the Assessing Officer who directed to value the fringe benefit of free/concessional tickets as per the valuation of frequent flyer programme as provided by the assessee in its books of account at ₹ 446.06 as the same has also been accepted by the Department while making provisions for " frequent flyer programme" for earning JP mileage, and if there are costs for foreign travels the same should be eliminated from the same, thereafter, the Assessing Officer is also directed to reduce the cost recovered from the employees.
Direct the Assessing Officer to verify from the special auditor' s report about the actual figure of the tickets issued. Needless to mention, the Assessing Officer must compute the value of fringe benefit by adopting the correct number of tickets issued to the cost computed in the case of frequent flyer programme. The assessee is directed to furnish the details of the amount recovered from the employees towards the cost/concession/free tickets. The Assessing Officer is directed to reduce the value of the fringe benefit to the extent of the cost of benefit recovered by the assessee from its employees - Decided in favour of assessee for statistical purposes.
Charge of fringe benefits tax on festival expenses - Held that:- There is no employer- employee relationship between the payer (assessee) and the recipient. Therefore, we have no hesitation in holding that no fringe benefits tax is leviable on these expenses. Finding of the learned Commissioner of Income-tax (Appeals) are accordingly reversed. - Decided in favour of assessee.
Fringe benefits tax on insurance expenses - Held that:- The assessee has not submitted any details before the lower authorities to substantiate its claim. Therefore, in the interest of justice and fair play, we restore this issue back to the files of the Assessing Officer. The assessee is directed to substantiate its claim that such insurance premium is a statutory liability by bringing cogent material evidence. - Decided in favour of assessee for statistical purposes.
Fringe benefits tax on trade display expenses as being in the nature of gift - Held that:- As the employer/employee relationship is a pre-requisite for the levy of fringe benefits tax and after considering the details of trade display expenses, in our humble opinion the gift items have been given to the travel agents/customers with whom the assessee does not enjoy employer-employee relationship. Accordingly, the levy of fringe benefits tax on this count is deleted - Decided in favour of assessee.
Fringe benefits tax on per diem expenditure - Held that:- As the assessee itself has offered the per diem expenses for fringe benefits tax under the category " tour and travel" . Since the assessee itself has offered per diem expenses for fringe benefits tax in the assessment year 2008-09, we do not find any reason why the same should not be offered for the year under consideration. - Decided in favour of assessee.
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2013 (1) TMI 720 - DELHI HIGH COURT
Disallowance under section 14A - CIT(A) restricting the disallowance to 2% of dividend income - contention of the revenue that Rule 8D of the Income Tax Rules, 1962 had not been applied properly in respect of the assessment year 2008-09 - Held that:- this is merely a question of fact and does not involve any question of law much less a substantial question of law, as the Tribunal held that the expenses which have been claimed by the assessee were not towards the exempted income. The disallowance, therefore, was rightly limited to a sum of ₹ 40,556/-. The question of interpreting Rule 8-D is not in dispute and the only dispute is with regard to facts which have been settled by the Tribunal. - Decided against revenue.
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2013 (1) TMI 719 - ITAT MUMBAI
Capital expenditure or Revenue expenditure - advertisement expenses - Held that:- It is an admitted fact that similar claim of the assessee was allowed in the past by the Revenue without making additions. It is only in this year, based on artificial criteria, this expenditure was considered as capital in nature. The criteria adopted by the Commissioner of Income-tax (Appeals), in our opinion, is not proper and any artwork which has a life of six months or less, by no reasoning, can be considered as capital expenditure. Considering the average life span of such artwork, which is only less than six months, it cannot be inferred that any capital apparatus has come into existence which can be the source of income generation for the assessee. It is not justifiable that the "artworks" fall in the capital field. Accordingly, we direct for deleting the addition of ₹ 1,52,809 and allow the ground raised by the assessee. - Decided in favour of assessee.
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2013 (1) TMI 718 - ITAT CHENNAI
Unexplained cash credits - lack of evidence - Assessee contends that bank account belong to other person - Held that:- Assessees have not produced any piece of evidence before any of the lower authorities to show that the savings bank deposits made by them related to other parties. They did not produce any evidence even before this Tribunal. The only prayer of learned counsel for the assessees was that if the cases are remitted back to the Assessing Officer, the assessees can produce evidence and present their cases more effectively. But, even for remanding the cases back to the Assessing Officer, it is incumbent upon the assessees to show the existence of acceptable evidence in their hands. They have not shown anything to lead this Tribunal to come to the conclusion that the assessees are already having dependable evidence to prove their contentions placed before the lower authorities in the earlier proceedings. - All these aspects have been fully explained by the assessing authorities as well as by the Commissioners of Income-tax (Appeals). We do not find any reason to interfere in the orders passed by those authorities. - Decided against assessee.
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2013 (1) TMI 717 - ITAT JODHPUR
Penalty u/s 271(1)(c) - Benefit of Explanation 5 of section 271(1)(c) - Held that:- benefit of Explanation 5 of section 271(1)(c) is available to the assessee-company, as all the requisite conditions of this Explanation stand fulfilled. The version that the surrender is not voluntary would not apply in the case when surrender of undisclosed income is made under section 132(4) and certain specific conditions are found to exist. - benefit of Explanation 5 is available to this assessee and no penalty under section 271(1)(c) can be imposed in all the three assessment years. Therefore, we order to delete penalty levied in all these years namely (2004-05) and (2006-07), are ordered to be deleted. - Following decision of Asst. CIT v. Gebilal Kanhaiyalal [2012 (9) TMI 297 - SUPREME COURT] - Decided in favour of assessee.
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2013 (1) TMI 688 - ITAT PUNE
Deduction u/s 80-IA - Treating the year of first generation of power from the ‘Windmill Undertaking’ i.e. AY.02-03 as the ‘initial assessment year’ - Reducing the amount of profits derived from the said undertaking in the year under appeal by the amount of unabsorbed losses and depreciation relating to all the assessment years beginning AY 2002-03 - Held that:- Following the decision of Velayudhaswamy Spinning Mills (P) Ltd. Vs. ACIT [2010 (3) TMI 860 - MADRAS HIGH COURT] wherein held profits are to be computed as if such eligible business is the only source of income of the assessee. When the assessee exercises the option, only the losses of the years beginning from the initial A.Y. are to be brought forward and not the losses of the earlier years which have been already set off against the income of the assessee - no notional brought forward and set off against the profits of the eligible business as no such mandate is provided in section 80-IA(5). When the assessee exercises the option, only the losses of the years beginning from the initial A.Y. are to be brought forward and not the losses of the earlier years which have been already set off against the income of the assessee.
As DR has not brought to the notice of the Bench any decision contrary on the issue in question it is to be held that the assessee is eligible for claim of deduction u/s 80-IA for the year under consideration in a manner whereby the initial assessment year referred to in section 80-IA(5) is to be taken as the A.Y. 2004-05 as the assessee has opted to claim this deduction only in this assessment year - in favour of assessee.
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2013 (1) TMI 681 - DELHI HIGH COURT
Amount received from DTTI in terms of release agreement - capital receipt or revenue receipt - assessee a firm of chartered accountants entered into understanding with Chartered Accounts of Calcutta referred to them by Deliotte Haskins & Sells (DHS)part of the chartered accountants firm by name “Deliotte Touche Tohmatsu International” (DTTI), based in USA - release agreement entered into on 14.11.1996 under which the assessee firm was to no longer represent DHS in India & thereafter DHS would not refer any work to the assessee-firm - Held that:- As decided in Kettlewell Bullen & Co. Ltd. v. CIT [1964 (5) TMI 4 - SUPREME COURT] where on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue & where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessee’s income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt. Also see Oberoi Hotel Pvt. Ltd. Versus Commissioner of Income-Tax [1999 (3) TMI 2 - SUPREME COURT]
CIT v. Best & Co. (P) Ltd case [1965 (11) TMI 23 - SUPREME COURT] as relied upon by revenue will not apply here as the facts of the case are not in pari materia with it the assessee in Best & Co, case had innumerable agencies in different lines and it only gave up one of them and continued to do business without any apparent mishap and that the correspondence showed that the assessee gave up the agency without any protest “presumably because such termination of agencies was part of the normal course of its business” . Thus answer the substantial question of law by holding that the amount of ₹ 1,15,70,000/- received by the assessee in terms of the release agreement dated 14.11.1996 represents a capital receipt, not assessable to income tax. The appeal of the assessee is allowed - against revenue.
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2013 (1) TMI 680 - PUNJAB AND HARYANA HIGH COURT
Deduction u/s 80M on the 'gross dividend' - CIT(A) held that only the financial expenses incurred could be taken into consideration for working out the deduction and not the personnel and administrative & miscellaneous expenses - ITAT restricted the disallowance to the extent of Rs. 1,00,000/- instead of upholding the total disallowance of Rs. 6,66,035/- made by the A.O. - Held that:- No authority taking a contrary view that the Revenue is entitled to reduce from 'gross dividend' received, the presumptive expenditure in the absence of actual expenditure for determining the 'net dividend' income, has been cited. The Revenue did not conduct an enquiry to determine the actual expenditure incurred in earning the dividend income by the assessee, which is a manufacturing concern and also deals in trading of the hosiery goods. It is not an investment company. It has been the categorical stand of the respondent-assessee that the investment, on which the dividend income is earned, was old and the total dividend warrants received by the assessee were only 2 to 3 on the shares held of the sister concern. The appellant's counsel urged that the ITAT or for that matter CIT(A) had no basis before them to determine the expenses incurred in earning dividend income by approximation but we find that for that matter the grievance could be raised by respondent assessee and not the Revenue which has come in appeal - no substantial question of law arises in these appeals.
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2013 (1) TMI 679 - DELHI HIGH COURT
Reopening of assessment - Incorrect allowance of deduction in respect of royalty received from foreign enterprise, deduction in respect of export profits,profit and gains from newly established undertakings, profit and gains from newly established industrial undertakings & non-business expenditure - Held that:- Insofar as all the purported reasons other than the reason pertaining to club expenses are concerned, specific queries had been raised and the AO had considered the material placed by the petitioner before him as claim in the return supported by a relevant certificates has been submitted by assessee.
As regards club expenses, Mr Maratha appearing on behalf of the respondents states that since no specific query had been raised, Explanation 1 would get triggered. But no agreement with this submission this is so because the club expenses were specifically mentioned at serial No. 17(d) of the tax audit report in Form No. 3CD which was annexed along with the return. This was a clear statutory disclosure on the part of the assessee with regard to the claim of club expenditure. It was not a piece of evidence which was hidden in some books of accounts from which the Assessing Officer could have possibly, with due diligence, discovered the same. On the contrary, this was material which was placed before the Assessing Officer along with the return which the Assessing Officer was duty bound to go through before completing the assessment. Clearly this does not fall in the category of material which is referred to in Explanation 1 to Section 147 of the said Act.
Thus this is clearly not a case of failure on the part of the assessee to fully and truly disclose all material facts necessary for the assessment. This is of material significance because the notice under Section 148 has been issued after expiry of four years from the end of the relevant assessment year. Therefore, the notice is time barred. Apart from this,it amounts to a mere change of opinion - in favour of assessee.
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2013 (1) TMI 678 - ITAT DELHI
Re opening of assessment - no notice under section 143(2) has been issued - DR argued that Section 292BB comes to the rescue of revenue whereby the requirement of issuing notice u/s 143(2) can be dispensed with - Held that:- ITAT vide its order dated 11th Feb. 2011 had already given a finding that 143(2) notice was mandatory & CIT (A) has recorded a finding of fact that notice u/s 143(2) of the IT Act, was not issued.
Rescue under Section 292BB is not allowed as the said ection was inserted by Finance Act 2008 w.e.f. 1.4.2008 and Hon’ble Delhi High Court in the case of CIT Vs. Mani Kakar (2008 (10) TMI 565 - HIGH COURT OF DELHI) had held that provisions of Section 292BB are applicable from assessment year 2008-09 and the cases under consideration relates to assessment years 2005-06 and 2006-07. Similarly in the case of ITO Vs. Nasemen Farms P. Ltd. (2010 (9) TMI 903 - ITAT DELHI) has held that provisions of Section 292BB are applicable only from assessment year 2008-09 and also do not apply where there is failure to issue notice as jurisdiction to assess arises only after the notice has been issued. Moreover in the case of Alpine Electronics Asia P. Ltd. Vs. Director General of Income Tax [2012 (1) TMI 100 - DELHI HIGH COURT] held that notice u/s 143(2) is mandatory in reassessment proceedings and it is not a procedural requirement. Thus reassessment proceedings completed in above cases without issuing of necessary notice u/s 143(2) were bad in law and hence were void ab initio - appeals filed by assessee are allowed.
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