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Showing 441 to 460 of 1658 Records
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2024 (10) TMI 1218
Breach of principles of natural justice - service of SCN - impugned order and notices preceding such order were uploaded on the “View Additional Notices and Orders” tab on the GST portal and not communicated to the petitioner through any other mode - mismatch between the petitioner's GSTR 3B returns and the auto-populated GSTR 2A - HELD THAT:- On examining the impugned order, it is evident that each tax proposal dealt with therein was confirmed because the petitioner did not file a reply to the show cause notice. Since it is asserted that the petitioner could not participate in proceedings because of being unaware of proceedings, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits after putting the petitioner on terms.
The impugned order dated 27.12.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand within two weeks from the date of receipt of a copy of this order. With in the said period, the petitioner is permitted to submit a reply to the show cause notice - Petition disposed off.
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2024 (10) TMI 1217
Violation of principles of natural justice - materials placed on record by the petitioner were not duly considered - wrongful availment of ITC - HELD THAT:- On perusal of the impugned order, it is evident that the tax dues towards SGST and CGST were discharged by the petitioner. It also appears that 100% penalty was imposed under Section 74 without recording any reasons for invoking Section 74. In these circumstances, the matter requires re-consideration by putting the petitioner on terms.
The impugned order dated 28.06.2023 is set aside on condition that the petitioner remits 10% of the cess demand under the impugned order with in two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit a detailed reply to the show cause notice during the aforesaid period.
Petition disposed off by way of remand.
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2024 (10) TMI 1216
Jurisdiction - proper officer or not - whether the Joint Commissioner can be the appellate authority? - HELD THAT:- The issue whether the Joint Commissioner can be the appellate authority, is a question, which is pending consideration before this Court in a Writ Petition, which is fixed for 19.06.2024. However, in the present case, the summary order dated 13.05.2024, has been passed by the Deputy Commissioner, who is the proper officer, and against this order, an alternate remedy of filing an appeal is available. As per the GST Act, before the Appellate Authority, under sub-section (6) of section 107 of the GST Act, the appellant has to deposit 25% of the amount before the Appellate Authority.
Under section 107 (6) of the GST Act, the order dated 17.05.2024, passed by the learned Single Judge, is being modified. The appellant will deposit 25% of the amount demanded from him by the proper officer vide order dated 13.05.2024, and thereafter, after depositing the said amount, the vehicle and the goods can be released.
The appeal is disposed of.
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2024 (10) TMI 1215
Breach of principles of natural justice - cancellation of petitioner's GST registration without proper opportunity to contest the tax demand - HELD THAT:- On examining the impugned order, it is evident that the tax proposal pertains to a comparison of the taxable supplies reported in the GSTR-3B returns of the petitioner and Form 26AS as well as the annual return. The impugned order records that the tax proposal is confirmed as the petitioner did not lodge objections. By taking into account the fact that the GST registration was cancelled and also the fact that the petitioner was not heard before the order was issued, it is just and appropriate to provide an opportunity to the petitioner to contest the tax demand on merits by putting the petitioner on terms.
The impugned order dated 30.10.2023 is set aside and the matter is remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to with in a period of two weeks from the date of receipt of a copy of this order - Petition disposed off by way of remand.
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2024 (10) TMI 1214
Violation of principles of natural justice - petitioner was not provided a reasonable opportunity to contest the tax demand on merits - mismatch between GSTR-3B and the auto-populated GSTR-2A - HELD THAT:- On examining the impugned order, it is clear that the confirmed tax proposal pertains to mismatch between the GSTR-3B returns and the auto-populated GSTR-2A. Such tax proposal was confirmed because the petitioner did not reply to the show cause notice. Therefore, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits, albeit by putting the petitioner on terms.
The impugned order dated 07.07.2023 is set aside and the matter is remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to with in two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is permitted to send a detailed reply to the show cause notice by enclosing all the relevant documents - Petition disposed off.
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2024 (10) TMI 1213
Rate of tax - work allotted by Maharashtra Jeevan Pradhikaran (MJP) as a part of Jal Jeevan Mission which is a mission of Government of India allotted, performed & invoiced before and after 01.01.2022 - work allotted by Maharashtra Jeevan Pradhikaran (MJP) as a part of Jal Jeevan Mission which is a mission of Government of India which is performed & invoiced after 01.01.2022 but which is allotted before 01.01.2022 - service receiver within the meaning of Sec.2(93) of CGST/MGST Act in respect of amounts received as grants by MJP which are paid to the applicant on services provided before and after 01.01.2022 - appointment of MJP as an agency to implement water Supply schemes - legation of sovereign function enumerated in Sch. XI & XII with in the frame work of Constitution of India so as to hold that MJP has performed the function entrusted under Article 248G & 243W of the Constitution of India or not.
What is the classification of the services supplied to Maharashtra Jeevan Pradhikaran (MJP) as a part of Jal Jeevan Mission which is a mission of Government of India allotted, and its HSN/SAC Code and applicable entry in Notification No. 11/ 2017- Central Tax (Rate) dated 28th June 2017? - HELD THAT:- The services supplied by the applicant are in nature of “Technical Consultancy for Project Development and Management support services, and hence classifiable under SAC code -998399- Other professional, technical and business services n.e.c., under the head Business and Production Services covered at Sr No 21 (ii) in the Notification No 11/2017- Central Tax (Rate)- dated 28th June 2017 and are taxable at rate of 18% (9% CGST & SGST each), wherever exemption is not applicable. Wherever exemption is not applicable.
Whether Services provided to MJP for the Constitutional function of State & Central Governments, for which these Governments are liable to pay the consideration of contract, and as payment is made through PFMS, supplies are in fact made to the Central & State Government? - HELD THAT:- The argument of the applicant that services provided to MJP for the Constitutional function of State & Central Governments, for which these Governments are liable to pay the consideration of contract, and as payment is made through PFMS, supplies are in fact made to the Central & State Government. Hence, even after deletion of the word “Government Authorities “with effect from 01-01-2022, from the notification entry number 3, the services provided by the applicant shall be eligible for benefit of exemption services provided by it to MJP, is not based on evidence, far-fetched and based on conjectures and surmises and very specious argument and hence rejected.
Supply of services where Time of supply is on or before 31-12-2021 - HELD THAT:- Supply of services where Time of supply is on or before 31-12-2021. After Considering all the aforesaid facts, provisions of Law, issues and decision therein, there are no hesitation in holding the “Technical Consultancy for Project Development and Management support services”, provided by the applicant to the MJP for its Water supply schemes where time of supply is on or before 31-12-2021, are covered by the exemption entry at Sr No. 3 of the exemption notification No 12/2017-Central Tax (Rate), dated 28th June 2017.
Supply of services where Time of supply is on or after 01-01-2022 - HELD THAT:- There are no hesitation in holding the “Technical Consultancy for Project Development and Management support services”, provided by the applicant to the MJP for its Water Supply schemes where time of supply is on or after 01-01-2022, are not covered by the entry at Sr No. 3 of the Notification No 12/2017-Central Tax (Rate), dated 28th June 2017. As the words “or a Government Authority or a Government Entity’, are omitted from the aforesaid Entry at Sr. No. 3.
Whether appointment of MJP as an agency to implement water supply schemes amounts to delegation of sovereign function enumerated in Sch. XI & XII within the framework of Constitution of India so as to hold that MJP has performed the function entrusted under Article 243G & 243W of the Constitution of India? - HELD THAT:- Not answered, being out of purview of provisions of section 97 (2) of the GST ACT, 2017.
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2024 (10) TMI 1212
Inadvertent error on the part of the bank officials ignoring restraint orders - FIR registered for the offences punishable under the different provisions of the IPC on certain officials of the appellant-bank - continuation of the criminal proceedings against the appellant-bank - mens rea of the officials of the appellant-bank or failure to disclose the commission of any offence - restraint order was imposed in respect of Bank Lockers, Bank Accounts and Fixed Deposits - As submitted that access of the bank locker given is in violation of Section 132(2) of the IT Act would attract the offence under Section 409 read with Section 405 of the IPC
HELD THAT:- In the present case, the FIR does not show that the appellant-bank had induced anyone since inception.
For bringing out the offence under the ambit of Section 420 IPC, the FIR must disclose the following ingredients:
(a) That the appellant-bank had induced anyone since inception;
(b) That the said inducement was fraudulent or dishonest; and
(c) That mens rea existed at the time of such inducement.
The appellant-bank is a juristic person and as such, a question of mens rea does not arise. However, even reading the FIR and the complaint at their face value, there is nothing to show that the appellant-bank or its staff members had dishonestly induced someone deceived to deliver any property to any person, and that the mens rea existed at the time of such inducement. As such, the ingredients to attract the offence under Section 420 IPC would not be available.
For bringing out the case under criminal breach of trust, it will have to be pointed out that a person, with whom entrustment of a property is made, has dishonestly misappropriated it, or converted it to his own use, or dishonestly used it, or disposed of that property.
In the present case, there is not even an allegation of entrustment of the property which the appellant-bank has misappropriated or converted for its own use to the detriment of the respondent No.5. As such, the provisions of Section 406 and 409 IPC would also not be applicable.
Since there was no entrustment of any property with the appellant-bank, the ingredients of Section 462 IPC are also not applicable.
Likewise, since the offences under Section 206, 217 and 201 of the IPC requires mens rea, the ingredients of the said Sections also would not be available against the appellant-bank.
FIR/complaint also does not show that the appellant-bank and its officers acted with any common intention or intentionally cooperated in the commission of any alleged offences. As such, the provisions of section 34, 37 and 120B of the IPC would also not be applicable.
We find that the present case would squarely fall within categories (2) and (3) of the law laid down by this Court in the case of Bhajan Lal and others [1990 (11) TMI 386 - SUPREME COURT]
The continuation of the criminal proceedings against the appellant-bank would cause undue hardship to the appellant-bank.
The impugned judgment and order passed by the learned Single Bench of the High Court of Judicature at Patna is quashed and set aside.
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2024 (10) TMI 1211
Maintainability of appeal in High Court - substantial question of law or not? - income tax officer disallowing expenses and determining income at a higher amount - as decided by HC [2024 (1) TMI 1336 - BOMBAY HIGH COURT] a reasoned order has been passed for allowing or disallowing the claim of the appellant. There is no question of substantial question of law when all the facts have been considered - HELD THAT:- Delay in refiling the special leave petition is condoned.
No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petition is accordingly dismissed.
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2024 (10) TMI 1210
TP Adjustment - comparable selection - M/s TCS E-Serve International Ltd., M/s TCS E-Serve Ltd. and M/s Infosys BPO Limited - inclusion of 3 comparables was essentially raised on the ground of the huge expenditure incurred by those entities in brand building and advertisement as also on account of the reputed brand value and profile of those entities which clearly resulted in higher profitability.
HELD THAT:- We find that insofar as TCS E-Serve and Infosys BPO Limited are concerned, the Tribunal had in the appellant’s own case pertaining to AY 2011-12 excluded those two entities from the list of comparables following the decision rendered by this Court in BC Management Services Pvt. Ltd. [2017 (12) TMI 255 - DELHI HIGH COURT] In AY 2011-12, TCS E-Serve International had been excluded from consideration by the TPO itself.
The exclusion of the three comparables in question would clearly merit acceptance bearing in mind a subsequent decision rendered by this Court in PCIT v. Evalueserve Sez (Gurgaon) Pvt. Ltd [2018 (2) TMI 1750 - DELHI HIGH COURT]
The appeal shall consequently stand allowed. The question as framed is answered in the affirmative and in favour of the appellant assessee.
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2024 (10) TMI 1209
Correct head of income - rent income derived from properties - ‘Income from house property’ or ‘Income from Profits and Gains of Profession or Business’ - HELD THAT:- In the present case, it appears to be not in dispute that the only source of income for the assessee was the income derived from rent or amounts as received by the assessee from letting out its properties. The record indicates that the AO in the present case has not disputed the nature of the business of the assessee and more importantly, the income offered to tax in respect of all the relevant assessment years, (subject matter of different appeals) is derived from letting out various properties, and which is the business activity of the assessee, to earn such income, through its business, as seen from the main objectives, outlined in the memorandum of association.
It is hence, not the case that the business of the assessee is of a nature that the income from house property is required to be treated as an incidental income not derived from its main business, when it is derived from its main business of letting out its properties. In our opinion, there is certainly a difference between the two situations, firstly where the main object of the assessee is to earn income from letting out properties, and secondly, where the assessee incidentally earns income apart from its main business i.e. from letting out its house properties, both these situations are totally distinct.
Adverting to the law as laid down in Chennai Properties & Investments Ltd. [2015 (5) TMI 46 - SUPREME COURT] it is clear that what must be borne in mind for the Court is to consider the main objective of the assessee as contained in the Memorandum of Association, and that the deciding factor, is not the ownership of land or leases but the nature of the activity of the assessee and the nature of the operations in relation to them. It is the main objective of the company which needs to be the focal point, to consider the business of the assessees in considering whether any income derived from such properties is the “income from profits and gains of business or profession” or the same would be required to be regarded as “income from house property”.
In the present case, the income of the assessee is derived from letting out of the properties, which in fact, is the principal business of the assessee as seen from its main objectives of the assessee as contained in its memorandum of association, therefore, the assessee was correct in accounting such income under the head ‘income from profits and gains of business’, and not as ‘income from house property’. For such reasons, there was an apparent error of law in the Tribunal holding that the assessee’s income is required to be treated as “income from house property” and not the “income from profits and gains of business”.
The appeals need to succeed. Rent income derived by the assessee from lease of its properties was assessable as income from profits and gains of business. The questions of law as framed by this Court are answered in favour of the assessee and against the revenue.
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2024 (10) TMI 1208
Non-deposit of the TDS amounts - according to the petitioners, such amounts were shown to have been deducted from the salary slips as issued to the petitioners - petitioners contend that it was not permissible for respondent No. 1 to issue such demand notices against the petitioners in view of clear provisions of Section 205 of the Income Tax Act, which bars any demand against the assessees - HELD THAT:- The mandate of Section 205 is absolutely clear that the assessee shall not be called upon to pay taxes himself to the extent to which tax has been deducted from the asessee’s income. The object and purpose behind the provision is to the effect that when an obligation to deposit the tax as in the present case, is on the employer and if the employer has defaulted, the liability to pay such tax cannot be shifted so as to be foisted on the employee, who is in fact the beneficiary of the payment to be received from the employer and who would also become the beneficiary of the tax being deposited at source on his behalf.
Such is the object of the provision. However, what the department has done is that without a warrant in law, the liability to pay such tax is being foisted on the petitioners, which is clearly in the teeth of Section 205 of the Income Tax Act. Thus, looked from any angle, it was not permissible for respondent No. 2 to raise any such demand against the petitioners. WP allowed.
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2024 (10) TMI 1207
Disallowance u/s 14A - if no exempt income is earned by the Assessee - HELD THAT:- Clearly, there could be no disallowance of any expenditure u/s 14A of the Act if the assessee’s income for the relevant assessment year did not include any income that was exempt from the limited tax. This issue is covered by the decision of this Court in Cheminvest Limited [2015 (9) TMI 238 - DELHI HIGH COURT] as well as the recent decision in Alchemist Ltd. [2024 (8) TMI 1371 - DELHI HIGH COURT]
Concededly, the said explanation is applicable prospectively and thus, would be inapplicable to the assessment year in question (AY 2016-17). It is relevant to note that this Court had in Era Infrastucture (India) Ltd. [2022 (7) TMI 1093 - DELHI HIGH COURT] held that the explanation would be applicable only prospectively and would have no retrospective operation.
In the given facts of this case, where the assessee does not have any exempt income in the relevant assessment year, there is no allegation that any expenditure has been incurred on account of exempt income that would accrue or arise in future years. Thus, even if we accept – which we do not – that the explanation to Section 14A of the Act as introduced by the Finance Act, 2022 was applicable retrospectively, the same would have no application in the given facts. Decided in favour of assessee.
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2024 (10) TMI 1206
Validity of reopening of assessment against dead assessee - notice issued on a dead person - Responsibility of legal representative - Assessee did not file return of income disclosing cash deposited in the bank account which had remained unexplained - HELD THAT:- Issue with regard to issuance of notice for reassessment u/s 148 of the Act on a dead person is no more res integra in view of the decision of Bhupendra Bhikhalal [2021 (3) TMI 892 - GUJARAT HIGH COURT] wherein notice issued u/s 153C of the Act against a dead person is held to be defective and consequently quashed and set aside.
Continuing assessment proceedings after assessee death against legal representatives - Expression "assessee" includes every person who is deemed to be an assessee under any provision of the Act. Sub-section (3) of section 159 of the Act, postulates that the legal representative of the deceased shall, for the purposes of the Act, be deemed to be an assessee. Sub-section (2) of section 159 of the Act says that for the purpose of making an assessment (including an assessment, reassessment or re-computation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section (1).
Thus, clause (a) of sub-section (2) of section 159 of the Act provides for the eventuality where a proceeding has already been initiated against the deceased before his death, in which case such proceeding shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased. In the present case, the proceeding under section 147 of the Act had not been initiated against the deceased before his death, and hence, clause (a) would not be applicable in the facts of this case.
In the present case, the impugned notice under section 148 of the Act has been issued against the deceased assessee. In the opinion of this court, since this is not a case falling under clause (a) of subsection (2) of section 159 of the Act, the proceeding pursuant to the notice under section 148 of the Act issued to the dead person, cannot be continued against the legal representative.
Revenue contended that issuance of the notice to the dead assessee is merely a technical defect which could be corrected u/s 292B - In the opinion of this court, here lies the distinction between those cases and the present case. In the relied upon cases, the legal representative, in response to the impugned notice, filed return of income and participated in the proceeding and then raised an objection to the validity of the proceeding and, therefore, the court held that this was a case of waiver and that a technical defect can be waived; whereas in this case, right from the inception the petitioner has objected to the validity of the notice and thereafter to the continuation of the proceeding and has at no point of time participated in the proceeding by filing the income tax return in response to the notice issued under section 148 of the Act. Had the petitioner responded to the notice by filing return of income, he could have been said to have participated in the proceedings, however, merely because the petitioner has informed the Assessing Officer about the death of the assessee and asked him to drop the proceedings, it cannot, by any stretch of imagination, be construed as the petitioner having participated in the proceedings.
Assessee appeal allowed.
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2024 (10) TMI 1205
Validity of reassessment proceedings post approval of resolution plan by NCLT - HELD THAT:- As pursuant to insolvency proceedings initiated under the Code, a resolution plan was approved by the Tribunal. It is also on record that the claims lodged by various parties were verified and admitted in the proceedings before NCLT. After consideration of the claims by all concerns the plan was approved.
As relying on Ghanashyam Mishra [2021 (4) TMI 613 - SUPREME COURT] in view of above clear provisions of law no person would be entitle to initiate or continue any proceedings in respect of any claim for any dues relating to the period prior to approval of resolution plan.
In view of approval of resolution plan, all liabilities of all stakeholders including that of Government/ Statutory Authority shall stand extinguished after approval of the resolution plan. We therefore, deem it appropriate to quash and set aside the Assessment Order passed u/s 147 r.w.s. 144B of the Act as well as the demand notice issued for the Assessment Year 2013-14. The petition is accordingly allowed.
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2024 (10) TMI 1204
Penalty u/s 271(1) - disallowance of long-term capital loss arise on account of slump sale as per slump sale agreement - HELD THAT:- As evident that the brought forward loss was not set off by the assessee. Thus, from the perusal of the evidence placed on record, it is evident that the very basis on which it was alleged that the entire transaction is an afterthought which is a trick to evade taxes and the long-term capital loss was added to the total income of the assessee is without any merits.
Thus, we find that in the present case, the AO merely disagreed with the business transaction of the assessee whereby the proprietary concern was taken over by a company in which the assessee is a majority shareholder. Due to the long-term capital loss, which is the basis for the levy of the impugned penalty, there is no evasion of tax. We find that while examining the meaning of the term “particulars” in section 271(1)(c) as in CIT v/s Reliance Petroproducts (P) Ltd [2010 (3) TMI 80 - SUPREME COURT] held that mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee.
We are of the considered view that the levy of penalty under section 271(1)(c) of the Act in the facts of the present case is not justifiable, and accordingly the same is deleted. Appeal by the assessee is allowed.
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2024 (10) TMI 1203
LTCG - exemption u/s. 54 towards investment in house property which was under construction and not completed - utilization of the capital gain in construction of a residential house - HELD THAT:- As relying on C. Gopalaswamy [2016 (6) TMI 643 - KARNATAKA HIGH COURT] there is no infirmity in the decision of the CIT(A) in allowing the exemption u/s. 54 of the Act based on the amount utilised by the assessee towards construction of new house property where the construction is not complete. Appeal filed by the Revenue is dismissed.
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2024 (10) TMI 1202
LTCG - Applicability of Section 50C - refence to the valuation officer - substitution of sale consideration with the stamp duty value - HELD THAT:- When the valuation officer is guilty of breach of the law by not submitting the valuation report within a reasonable time period thus for the breach of all such legal provisions, the lower authorities should not get some premium by enhancing the limitation period by leaving the assessment open with such condition for indefinite period.
We are live to the issue that though the interest of revenue is vital, such interest cannot override considerations of probity and fairness in tax governance. A fair tax regime where no assessee is harassed is equally crucial. The reference was made to the valuation officer on 22.03.2021 and thereafter the assessment was completed on 18.04.2021 as by making reference of limitation for completing the assessment, the same cannot be extended now solely for want of the valuation report, at the same time, necessary steps should have been taken by the concerned officials to ensure that the report from the office of the valuation officer should reach to the office of the AO within a reasonable time period which both the lower authorities have miserably failed to do.
If we allow the AO to modify the order after the receipt of the report from the valuation officer which otherwise is barred by limitations such action would not only reward the revenue with an enhanced limitation period but embolden unscrupulous tax officials to manipulate orders or otherwise mistreat the assessee. Therefore, we delete the addition made by AO who computed the amount of capital gains by taking Rs. 1,15,51,737/- being the value taken by stamp authorities as sale consideration as against Rs. 17,64,150/- as declared by the assessee - Appeal of assessee allowed.
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2024 (10) TMI 1201
Estimation of income - Addition of Bogus Purchases - HELD THAT:- For the present year, it was incumbent on the part of Ld. AO to make necessary verification / enquiries from alleged bogus suppliers. AO could not proceed merely on the basis of findings of earlier years. The search has happened in the middle of the year and there are not adequate evidences to hold that the purchases made throughout the year are bogus purchases.
Assessee is engaged in construction activity and would require purchase of raw material to carry out construction activities. In the light of all these facts and to plug the leakage of revenue, we estimate addition of 5% against alleged bogus purchases.
Bogus sub-contractors’ expenses - Though the payment was made through banking channels, cash was received subsequently, Accounts Head, admitted that bogus expenses were booked to reduce the profit of the firm - HELD THAT:- For the present year, it was incumbent on the part of Ld. AO to make necessary verification / enquiries from alleged bogus sub-contractors.
AO could not proceed merely on the basis of findings of earlier years. The search has happened in the middle of the year and there are not adequate evidences to hold that the expenditure as incurred throughout the year is bogus. Considering the nature of assessee’s business, the assessee would require services of sub-contractors. In the light of all these facts and to plug the leakage of revenue, we estimate addition of 25% against this item. The same comes to Rs. 32,80,189/-. The impugned addition stands restricted to that extent. The corresponding grounds stands partly allowed.
Addition of undisclosed interest income - alleged by Ld. AO that the assessee advanced undisclosed loans - HELD THAT:- We find that the quantum addition as made by Ld. AO for alleged loans in AY 2020-21 has been deleted by us in [2024 (10) TMI 1148 - ITAT CHENNAI]. This is consequential addition. Since the basis of the addition goes, the consequential addition would not have any legs to stand. Therefore, this addition stands deleted. The grounds raised by the assessee stand allowed.
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2024 (10) TMI 1200
Validity of reopening assessment u/s 147 - no notice u/s 143(2) - HELD THAT:- Hon’ble Delhi High Court in case of PCIT vs. Silver Line [2015 (11) TMI 809 - DELHI HIGH COURT] also held that merely because assessee participated in proceeding pursuance to notice under section 148, it would not obviate mandatory requirement of AO to issue a notice under section 143(2) before finalizing order of assessment. Further find Mukesh Mahavirprasad Singh [2021 (11) TMI 805 - ITAT SURAT] also held that issuance of notice under section 143(2) is a prerequisite of assuming jurisdiction under section 147/148 and section 292BB does not cure defect of non-issuance of notice u/s 143(2).
Now again turning to the facts of case in hand qua issue under discussion, find that despite raising legal issue, the revenue has not placed on record any evidence/ material to show that notice under section 143(2) was ever issued by AO.
The assessee has place sufficient material on record that despite raising specific request in ordinary as well as by virtue of invoking provisions of Right to Information Act, the AO failed to provide such information to the assessee that notice u/s 143(2) was issued by Assessing officer before passing assessment order. Appeal of the assessee is allowed.
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2024 (10) TMI 1199
Late fee levied u/s 234E - delay filing statements of tax deduction at source u/s 200/206C r.w.s. 200A/206CB by the deductor/collector - HELD THAT:- The pre-amended section 200A of the Act as stood on 31.03.2013 i.e. F.Y. 2012-13 relevant to A.Y. 2013-14 in question, did not permit processing of TDS statement for default in payment of late fee u/s 234E - Hence, late fee charged for belated filing of TDS quarterly return could not be recovered by way of processing u/s 200A of the Act.
As in Karnataka Grameen Bank [2023 (2) TMI 78 - ITAT BANGALORE] observed that amendment under section 200A providing imposition of fee if under section 234E could be computed at the time of processing of return and issue of intimation had come into effect only from 01.06.2015 and had only prospective effect and therefore, levy of late fee under section 234E would be illegal for statement of TDS in respect of period prior to 01.06.2015.
Late fee for TDS quarterly statement under challenge in captioned appeals cannot be recovered by way of processing under section 200A - Therefore, the demand raised with reference to section 234E of the Act cannot be countenanced in terms of the pre-amended provision of S. 200A and hence, requires to be quashed.
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9911796707
