|
Advanced Search Options
Case Laws
Showing 501 to 520 of 1658 Records
-
2024 (10) TMI 1158
Condonation of delay in filing return of income u/s 119 (2) (b) - delay of one day, as on the earlier day, the returns could not be uploaded on account of technical issue - HELD THAT:- We are not persuaded to accept the reasoning as set out namely that Respondent No. 1 considered the report submitted by the AO, which contained a screen shot of the Assessment Order in which it was found that the Return has been processed u/s 143 (1) of the Act with demand due. It is for such reason Respondent No. 1 was of the opinion that the application of the Petitioner for condonation of delay needs to be disposed of.
In our opinion, in passing the impugned order, there is complete nonapplication of mind, as also the reason set out to reject the petitioner’s application is completely misconceived. The reason, that the return has been processed, can be no ground to reject the delay in filing of the petitioner’s application seeking only one day’s delay in filing of the return.
Respondent would also not dispute that the delay in filing the Return being only of one day which was bona fide could not have been rejected for such reason. The principles which are paramount and jurisprudentially accepted, and as discussed by this Court in the case of Jyotsna Mehta [2024 (9) TMI 585 - BOMBAY HIGH COURT] in our opinion, mandate their application in the present facts, for the delay to be condoned.
-
2024 (10) TMI 1157
Reopening of assessment u/s 147 - income in relation to NRE Account - as argued source of income as well as deposits were from NRE Account and therefore, the same was not taxable in India - HELD THAT:- From the bank details provided, it is evident that remittance of the loan was made from NRE account of the assessee, and source of that income was explained. Assesse’s explanation is supported by the bank statement produced.
The income earned in NRE Account is exempt u/s 10(4) (ii) of the Act and the source of income and the remittance of loan being explained by the assessee, we do not find any justification for issuance of Notice u/s 148, as also for passing of order u/s 148A (d) of the Act.
-
2024 (10) TMI 1156
Revision u/s 263 against company insolvent - HELD THAT:- Considering the submissions made on behalf of both the sides and upon perusal of the record, it is noticed that pursuant to insolvency proceedings initiated under the Code, a resolution plan was approved by the Tribunal under Section 30 (6) of the Code. It is also on record that the claim which was lodged by the Deputy Commissioner of Income Tax, Rajkot was verified and admitted in the proceedings before NCLT after consideration of the claim filed by the Additional Commissioner of Income Tax, Rajkot.
As relying on case of Ghanashyam Mishra [2021 (4) TMI 613 - SUPREME COURT] no person would be entitled 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 notice u/s 263 of the Act. WP allowed.
-
2024 (10) TMI 1155
Validity of Assessment Order passed by ACIT, International Taxation - failure to file objections within the stipulated time period u/s 144C - concept of "draft order" - HELD THAT:- Section 144C (2) provides that on receipt of the draft order, the eligible officer shall within 30 days of the receipt by him of the draft order file his objections, if any, to such variations with DRP and AO. The concept of draft order is introduced in Section 144B which provides for faceless assessment. Prior to insertion of Section 144B, there was no concept of "draft order".
Therefore, after the draft assessment order has been served upon the assessee, it was open for the assessee to upload form 35A on the Income Tax Portal. In the facts of the case, it is not in dispute that the petitioner had uploaded form 35A on 18.04.2023. The petitioner assessee had also sent form 35A in physical form through Maruti courier on 18.04.2023.
Thus, for all intents and purpose, it cannot be said that the petitioner had not filed the objections within 30 days as specified under the provision of Section 144C (2) (b) of the Act.
AO was therefore not justified in passing the impugned assessment order dated 29.05.2023 invoking provisions of Section 144C (3) of the Act on the ground that the assessee did not file objections within the specified time as per the provisions of Section 144C (2) (b) of the Act.
The impugned Assessment Order is contrary to the provision of Section 144C of the Act and is therefore liable to be quashed and set aside and at the same time, when the DRP by the impugned order dated 29.12.2023 has refrained from passing any order on variation in view of the impugned final assessment order being passed. As the final assessment order is not tenable the order of DRP is also required to be quashed and set aside.
Similarly, the provisional attachment placed under Section 281B of the Act would also not survive as the same has already lived its life of 6 years and there is nothing on record to show that the same is extended by the Assessing Officer more particularly after passing of the assessment order dated 29.05.2023.
The petition succeeds and is accordingly allowed.
-
2024 (10) TMI 1154
Reopening of assessment u/s 147 - reason to believe - deduction u/s 80IC - scope of change of opinion - HELD THAT:- As noticed that the return filed by the assessee for the AY2016-17 was selected for scrutiny and thereafter the assessment order u/s 143 (3) was passed. Prior to assessment order u/s 143 (3), a notice u/s 142 (1) was issued whereby details with regard to claim of deduction u/s 80IC of the Act were called for.
To the said notice, assessee responded on 08.12.2018 with the details called for in relation to deduction u/s 80IC of the Act. Thereafter, assessment order u/s 143 (3) dated 24.12.2012 was passed accepting the return.
Thereafter, notice u/s 148 was issued for the reason that the assessee has stated that M/s. Alpha Pharma Roorkee was merged with assessee company w.e.f. 01.10.2014. Assessee company as stated above has claimed deduction u/s. 80IC in respect of profit earned by Alpha Pharma Roorkee (undertaking). Since, the undertaking availing deduction u/s. 80IC was merged with the assessee company w.e.f. 01.10.2014, as per the provision of sub-section 12 of Section 80IA r.w.s. 12A of the Act, the undertaking is not eligible for tax benefit u/s.80IC of the Act.
Thus no reason to believe that income of the assesse has escaped assessment for A.Y. 2016-17 within the meaning of section 147 of the I.T. Act, because of the non-disclosure of fully and truly all the material facts necessary for assessment for A.Y.2016-17.
Assessee at the original assessment stage disclosed fully and truly all material facts relevant for assessment. The details in relation to deduction claimed under Section 80IC were called for and responded by the assessee. Therefore, the assesse’s contention of reopening based on mere change of opinion merits acceptance.
In this case also it is not a case where the details called for in relation to deduction under Section 80IC of the Act were not submitted by the assessee. The query raised and responded shows that the deduction claimed by the assessee was fully explained and thereafter the order of assessment under Section 143 (3) was passed. Therefore, in our opinion, the reasons recorded for reopening of the assessment under Section 147 for Assessment Year 2016-17 would amount to mere change of opinion by the respondents.
The notice for reopening of assessment cannot be sustained. In this view of the matter validity or otherwise of the claim for deduction under section 80IC of the Act is not necessary to be examined.
Petition succeeds and is accordingly allowed. Impugned notice u/s 148 is hereby quashed and set aside.
-
2024 (10) TMI 1153
Seeking condonation of delay for e-verification of the return of income - HELD THAT:- As noticed that in the application u/s 119 (2) (b) of the Act, the assessee explained the reason for belated filing of return. The status of petitioner being Non-resident Individual, is not in dispute.
There is no denial to the fact that the petitioner was not available in India from 17.06.2020 to 09.08.2022, since the necessary documents were part of record. The due date of filing of return of income had expired on account of assessee’s non availability and therefore, she had filed belated return of income u/s 139 (4).
The contention of respondent in the affidavit that there is no evidence to prove the technical glitches faced by the assessee in our opinion is not a valid ground since it is very difficult to prove technical glitch. In our opinion, it is a case of genuine hardship faced by the assessee and there being sufficient cause for condonation of delay, the order passed by the respondent u/s 119 (2) (b) of the Income Tax Act, 1961 deserves to be quashed and set aside. The aspect of undue hardship on part of the Petitioner has remained undisputed by the respondent.
The order passed by the respondent u/s 119 (2) (b) of the Income Tax Act, 1961 is hereby quashed and set aside. The respondent is directed to consider the application of the assessee on merits and to pass an order in accordance with Law within a period of 12 weeks from the date of receipt of this order.
-
2024 (10) TMI 1152
Validity of Reopening of assessment - suppression of turnover as unearthed during the survey conducted by the Enforcement branch of Trade & Taxes - ITAT set aside reopening as was without application of mind - HELD THAT:- When the notice u/s 148 had come to be issued, there were no outstanding demands or orders of assessment on the basis of the survey which had been originally conducted. In fact, and as the Tribunal records, on 30 December 2010 the original order of assessment had itself come to be set aside by the appellate authority and the matter remitted to the AO under the Sales Tax enactment for making a fresh assessment. We are informed that till dateno fresh assessment under the aforesaid Act has come to be either framed or drawn.
This thus constituted material which was squarely relevant and pertinent for the purposes of formation of opinion u/s148. However, and as would be manifest from the reading of the reasons recorded by the AO, it had proceeded solely on the basis of what had come to be recorded in the course of the Sales Tax survey. It becomes evident that the AO not only failed to independently examine those allegations, it also abjectly failed to enquire and ascertain the status of the proceedings under the Sales Tax statute. If that had been done, it would have found that there existed no demand or assessment against the assessee on the relevant date.
CIT (A) while dealing with the aforesaid and while negating the objections relating to the assumption of jurisdiction u/s 148 had chosen to rest its view on a ‘prima facie’ formation of opinion. The said decision is thus clearly rendered untenable and unsustainable on this ground alone.
As correctly decided by ITAT impugned information regarding survey by Sales Tax Department has been solely used by the Assessing Officer in letter and spirit for formation of belief of escapement of income without making any enquiry or application of mind, particularly when subsequent proceedings before various authorities of Sales Tax Department were available before issuance of notice u/s. 148 and were got acknowledged to the AO before passing the reassessment order. In presence of these facts, the reasons recorded by the AO cannot, in any way, be said to be proper to form a belief of escapement of income, as the information so received was neither found well founded nor the AO made any efforts to make any verification or application of his mind on the same. The provisions of Section 147 do not give unfettered powers to reopen the assessment and the AO is required to satisfy the pre-conditions as given in the said section, which is lacking in the present case - Decided against revenue.
-
2024 (10) TMI 1151
Computation of STCG - manner in which the short-term capital gains that are chargeable u/s 45(4) - HELD THAT:- A reading of the provisions of Section 45(4) would indicate that the computation has to be in the manner prescribed u/s 48, as modified by Section 50(1) of the Act. Consequence of an application of the said provisions of the IT Act to the income assessed in respect of the appellant firm, has not been discussed by the Tribunal in the impugned order. We are of the view that the Tribunal ought to have considered the said aspect also while disposing the appeal preferred by the revenue, especially because the order of the First Appellate Authority, that was impugned by the revenue before it, was in favour of the appellant herein.
Thus, while we uphold the finding of the Tribunal that the charge of Short Term Capital Gains, in the instant case, has to be as mandated in Section 45(4) we remand the matter back to the Tribunal for computing the extent of short-term capital gains, if any, that would be brought to tax in relation to the appellant herein. The Appellate Tribunal would have to do the said exercise by taking into account the totality of transactions effected during the previous year relevant to the assessment year in question.Decided against revenue.
Thus in the light of the discussions in this judgment and the remand necessitated to the Tribunal for a specific finding on the extent of short term capital gains, if any, that would accrue to the appellant firm during the assessment year in question. The Appellate Tribunal shall examine the provisions of Section 48, as modified by Section 50(1) of the Income Tax Act, and determine whether or not any short-term gains had accrued to the appellant firm for the assessment year in question.
-
2024 (10) TMI 1150
Income tax demand proceedings post insolvency - demand issued u/s 156 - Steps as secured creditor before the Hon’ble NCLT against the tax liability arising in the present case - HELD THAT:- Section 14 of IBC Code is very clear on the aspect that once moratorium is drawn and the insolvency commencement date is declared any institution of suits or definition of pending suits or proceedings against the creditor, debtor (in the present facts of the case of assessee before us) including the execution of any judgment, decree, or order in any Court of law, Tribunal, Arbitration Panel or other authority is to be prohibited.
Admittedly, a registered Insolvency Professional is appointed by Hon’ble NCLT and the assessee no longer could be represented by the representative to whom the authority was provided. Even otherwise, none appeared on behalf of the assessee before us today. At this juncture, we refer to the decision of in the case of Ghanshyam Mishra and Sons Pvt. Ltd [2021 (4) TMI 613 - SUPREME COURT] wherein has considered a situation wherein, the resolution plan was approved by the adjudicating authority u/s 31(1) of the IBC Code.
Hon’ble Supreme Court observed that, once the resolution plan was drawn, the claim as provided in the resolution plan stood frozen, and will be binding on the corporate debtor, its employee, its members, creditors, Central Government and any State Government or legal authority, guarantor and other stakeholders.
We note that in the present facts of the case, the resolution plan is yet to be finalized. When we read the newly inserted provisions of Section 156A of the Act, it is necessary to remand the appeal to the Ld. AO to take necessary steps/action before Hon’ble NCLT.
We deem it fit and proper to remand this appeal back to the Ld. AO to take necessary steps as per Section 156A of the Act
-
2024 (10) TMI 1149
Denial of deduction u/s 80IA - adjustment made u/s 143(1)(a) - assessee has contended that no prior intimation was given to the assessee before making the alleged adjustment or denying deduction u/s 80IE - HELD THAT:- As decided in case of Smt. Neelam Pachisia, Bangalore [2020 (3) TMI 1480 - ITAT BANGALORE] the proviso mandating giving of intimation to the assessee to the proposed adjustment should have also been followed by the revenue. It is so because, the said proviso was also inserted in sec.143(1) along with clauses (iii) to (vi) by Finance Act, 2016. Since no such intimation was given to the assessee, the impugned adjustment is liable to be deleted.
Thus we allow the ground raised by the assessee because no such intimation was given to the assessee prior to make the impugned adjustment.
-
2024 (10) TMI 1148
Estimation of income - Addition of Bogus Purchases - HELD THAT:- The party listed as serial no. 20 by Ld. AO is ‘others’ for Rs.209.82 Lacs for which even the names of the suppliers have not been identified by AO. The party wise list of ‘others’ have nowhere been provided to the assessee and there is no finding with respect to these parties. Therefore, the addition, to that extent, has rightly been deleted by Ld. CIT(A).
Purchases made from 4 entirely bogus parties aggregate to Rs.5,11,56,526/-. The purchases from remaining 15 parties are Rs.5,35,20.325/- which are partially bogus only. The assessee has already offered additional income of Rs.5,53,25,652/- in its return of income. Since the remaining purchases of Rs.5,35,20,325/- as made from 15 parties are partially bogus, to plug the leakage of revenue, we estimate addition against the same @10% which comes to Rs.53,52,032/-. The complete bogus purchase from 4 parties aggregate to Rs.5,11,56,526/- which stand sustained by us. Thus, the total addition as estimated by us would be Rs.5,65,08,558/-. The assessee has already offered additional income of Rs.5,53,25,652/-. Therefore, the balance addition as sustained by us would be Rs.11,82,906/-. No relief could be granted against GST component. The Ld. AO is directed to restrict the impugned additions to the extent of Rs.11,82,906/-.
Disallowance of sub-contractor’s expenses - We find that such expenses have been quantified at Rs.157 Lacs whereas the assessee has admitted partial income to the extent of Rs.140.18 Lacs only. The remaining component is GST component which also could not be allowed to the assessee on the ground that expense itself is bogus. The bogus GST component so paid has been adjusted from output GST liability.The assessee has avoided GST payment to that extent. Therefore, no interference is required in the orders of lower authorities, on this issue. The grounds raised by the assessee stand dismissed.
Addition of unexplained investment u/s 69 - addition has been made solely on the basis of loose excel sheet found during search and statements record therein - HELD THAT:- As in Kranti Impex Pvt. Ltd. [2018 (3) TMI 424 - ITAT MUMBAI] held that when the seized papers were undated having no acceptable narration and did not bear the signature of any party, they are in the nature of dumb documents having no evidentiary value and could not be taken to be the sole basis for determination of undisclosed income of the assessee. The onus would be on revenue to collect cogent evidences to corroborate the nothings therein.
Impugned additions as made by AO merely on the basis of loose sheets without any corroboration thereof, was not adequate enough to draw adverse inference of unaccounted loans by the assessee-firm. Therefore, we delete the same and allow the corresponding grounds as raised by the assessee. AO is directed to recompute the income of the assessee in terms of our adjudication.
-
2024 (10) TMI 1147
TP Adjustment - determination of Arm’s Length Price (‘AMP’) of international transactions entered - comparable selection - HELD THAT:- Elofic Industries Ltd. AND WABCO TVS (India) Ltd. Brakes India Pvt. Ltd. be excluded as functionally dissimilar with that of assessee, an Indian manufacturing for Auto components System and breaking system products.
Brakes India Pvt. Ltd. is having diversified operations and diversified market, the Brakes India Ltd. cannot be proper comparable. Accordingly, we order to exclude Brakes India Pvt. Ltd. from the list of comparables.
Clutch Auto Ltd. cannot be a valid comparable vis-à-vis a taxpayer having export sales of more than 10% . Accordingly, we direct the TPO to exclude it from the list of comparables.
ANG Industries Ltd. excluded from comparables as total sales are not even near to the taxpayer which is having a meager export sale of 0.17% and since the comparable companies are operating in entirely different geographical market, the same cannot be a valid comparable vis-à-vis the taxpayer.
Faiveley Transport Rail Technologies India Ltd. has revenue from comparable segment 26% and it has AMP expense ratio of 4% which is higher than filter of 2% which has been considered appropriate by the CIT(A) to direct the TPO to exclude from the comparable in the absence of any contrary materials on record, we find no error or infirmity in the finding and the conclusion of the CIT(A).
XLO India Ltd. excluded having negative net worth - As per the financials of the XLO India Ltd., it had profit of Rs. 6,150/- thousand in AY 2010-11 and it had negative net worth in the same year. The net worth of the said company has been improved from previous three years and it is not the case of diminishing returns, to substantiate the above claim, the Assessee produced the working at Annexure A-1 to the submission filed on 13/06/2024 - thus as relying on the ratio laid down in the case of Gillette Diversified and Operation Pvt. Ltd.[2017 (5) TMI 1828 - DELHI HIGH COURT] and Welspun Zucchi Textiles Ltd. [2014 (2) TMI 1287 - ITAT MUMBAI] we direct the T.P.O. to consider XLO India as comparable company.
Rane Brake Lining Ltd be excluded as the same is having AMP expense ratio of 4% which is higher than filter of 2% as considered appropriate by CIT(A) and it is also supplying goods in aftermarket segment.
Sundram Brake Linings Ltd. sales are not even near to the taxpayer which is having a meager export sale of 0.17% and since the comparable companies are operating in entirely different geographical market, the same cannot be a valid comparable vis-à-vis the taxpayer.
Determination of operating revenue - not considering the foreign exchange gain as operating income - Assessee contended that foreign exchange fluctuation is directly related to business transaction, therefore it is an operative item, therefore, the foreign exchange fluctuation should be considered as operating revenue - HELD THAT:- By relying on the order of the Co-ordinate Bench in Assessee’s own case for A.Y 2010-11 [2018 (7) TMI 2351 - ITAT DELHI] we direct to compute the operating margin of the tax payer, foreign exchange gain is to be considering the same as part of operating income for computing the operating margin as well as comparable companies. Accordingly, the Ground No. 4 of the Assessee is allowed.
Not considering cash profit/operating income as profit level indicator on account of high depreciation component - It is the case of the assesses that the average depreciation/sales of the Assessee is 10.57%, therefore, sought adjustment on account of depreciation - TPO has not allowed the adjustment in PLI of the Assessee on the ground that for the tested party, no adjustment should be allowed in the net profit - HELD THAT:- As relying in Assessee’s own case for Assessment Year 2010-11 [2018 (7) TMI 2351 - ITAT DELHI] we direct the TPO to decide the issue afresh in the light of decision rendered in the case of ACIT Vs. Gates India Pvt. Ltd. [[2017 (8) TMI 282 - ITAT DELHI] and Schefenacker Motherson Ltd. [2009 (6) TMI 125 - ITAT DELHI] accordingly the Ground of the Assessee is partly allowed for statistical purpose.
-
2024 (10) TMI 1146
Disallowance u/s 37 - interest paid on delayed payment of additional Customs Duty paid, considering the same as in nature of penalty - assessee in its submissions mainly contended that the interest paid was not penal in nature but was compensation for delay in payment of taxes and hence the same is allowable as revenue expenditure u/s 37 - HELD THAT:- As relying on Mahalakshmi Sugar Mills Company Ltd. [1980 (4) TMI 1 - SUPREME COURT], Lachmandas Mathuradas [1997 (12) TMI 16 - SUPREME COURT] Mysore Electrical Industries Ltd. [1991 (3) TMI 30 - KARNATAKA HIGH COURT] since interest is paid on delayed payment of custom duty, which calculated at certain percentage and on time basis is nothing but compensation for delay in payment of taxes and accordingly compensatory in nature.
The interest expenses are incurred wholly and exclusively for the purpose of business and the same is neither personal in nature nor capital in nature and therefore cannot be treated at par with the penalty at any point of time. The Interest due to delayed payment of custom duty is deductible u/s 37 of the Act as it is an accretion to the main payment and not a penalty and accordingly allowable as deduction. Appeal filed by the assessee is allowed.
-
2024 (10) TMI 1145
Assessment proceedings u/s 153C - Period of limitation - deemed date for the possession of the seized documents - HELD THAT:- On the similar facts in the case of Jasjit Singh [2014 (11) TMI 1012 - ITAT DELHI] it was held that the date of receiving of the seizes documents would become the date of search and six years period would be reckoned from this date.
From the above discussion the date of recording of the satisfaction will be the deemed date for the possession of the seized documents which is 03-10-2022 and six years would be reckoned from this date. The submission made by AR is tenable that the assessment year relevant for previous year in which search was conducted in the case of the assessee will be AY 2023-24 and six years immediately preceding the assessment year relevant for u/s 153C of the Act will be AY 2018-19 to 2022-23.
The assessment for AY 2021-22 should have been carried out by issuing notice u/s 153C and not u/s 143(2) of the Act. The case is squarely covered by case of Akanksha Gupta [2024 (7) TMI 1133 - ITAT DELHI] Therefore the assessment order passed u/s 143(3) of the Act is bad in law and liable to be quashed and quashed accordingly. Appeal of assessee is allowed.
-
2024 (10) TMI 1144
Assessment u/s 153A - Assessment in case of search or requisition - deduction claimed u/s 80IA(4) - Whether an assessee can make a claim for deduction under Chapter VIA of Income Tax Act, 1961, for the first time, in the return of income filed in response to the notice issued u/s 153A pursuant to a search conducted u/s 132? - HELD THAT:- Once the matter has been finally concluded by the Hon’ble Apex Court Abhisar Buildwell (P.) Ltd. [2023 (4) TMI 1056 - SUPREME COURT] and held that in unabated or concluded assessment, the AO cannot make any additions in the absence of any incriminating material found as a result of the search, in our considered view, particularly in the case of unabated or concluded assessments, and since the AO cannot tinker with unabated or concluded assessments in the absence of any incriminating material, with equal force, the same ratio should be applicable to the assessee as well.
Thus, based on the findings of the Hon'ble Apex Court, in our considered view, the appellant also cannot make any fresh claim of deduction or expenditure for the first time in the return of income filed in response to the notice issued u/s 153A of the Act. Insofar as the abated assessment is concerned, the assessee can make all claims, provided the return of income is filed in adherence to the timeline to furnish as per notice u/s 153A of the Act, failing which the assessee shall not be able to claim any deduction in view of Section 80A
As going by the wording of the provisions of Section 80A(5) and Section 80AC of the Act, in order to claim any deductions u/s 80IA(4) of the Act, the assessee should file its return of income on or before the due date prescribed u/s 139(1) and further, the said claim should be made in the return furnished. in order to claim deduction u/s 80IA(4) as per Section 80IA(7), furnishing of the audit report on or before the specified date referred to in Section 44AB of the Act is mandatory and not directory as argued by assessee.
We are taking support from the decision of Dilip Kumar and Company [2018 (7) TMI 1826 - SUPREME COURT] wherein clearly held that beneficial provisions like, deductions/ exemptions provisions are required to be strictly interpreted and any perceived ambiguity would necessarily ensure to the benefit of the revenue.
We further note that in the case of PCIT Vs. Wipro Ltd [2022 (7) TMI 560 - SUPREME COURT] has also considered the interpretation of provisions of Section 10B of the Act and held that such an option should be exercised before the due date u/s 139(1) by way of filing a declaration. Although the said decision was in the context of withdrawal of exemption u/s 10B in our considered view, when it comes to the interpretation of exemption and deduction provisions, the said provisions should be strictly interpreted so as to achieve the larger intent of the Legislature.
Therefore, we are of the considered view that the arguments of the learned counsel for the assessee that when the appellant filed its return of income in response to a notice u/s 153A of the Act, it partakes the nature of the return filed u/s 139 of the Act and thus, all the conditions prescribed u/s 80A(5) and Section 80AC are satisfied is contrary to law and devoid of merit and cannot be accepted.
We are of the considered view that the assessee cannot make a fresh claim of deduction under Chapter VI-A of the Income Tax Act, 1961, for the first time, in the return of income filed in response to notice issued u/s 153A of the Act, pursuant to search conducted u/s 132 of the Act, in unabated/completed assessment as on the date of search.
In case of abated assessments, like the AO who can make assessment based on incriminating materials and any other information made available to him, including information furnished in return of income, the assessee may claim all deductions towards any income or expenditure, as if it is a first return of income and fresh assessment.
The present discussion hereinabove is with reference to the questions referred to on the issue, i.e. whether a fresh claim of deduction under Chapter VI-A of the Income Tax Act, 1961 could be maintained for the first time in the return filed pursuant to a notice u/s 153A of the Act or not.
Assessee and the Senior Standing Counsel appearing for the Revenue did not argue on the merits as to whether the assessee is eligible for such a claim or not. Therefore, the present appeals filed by the Revenue are posted for hearing on the issue of deduction claimed u/s 80IA(4) of the Act on merits. The Registry is directed to list the appeals in due course and inform both parties
-
2024 (10) TMI 1143
Denial of benefit of duty exemption No. 21/2002–CUS dated 01.03.2002 - imported coke breeze - validity of the show cause notice, having invoked the extended period of limitation u/s Section 28(4) of the Customs Act - penalty - it was held by CESTAT that 'As the importer had clearly declared the imported goods as coke breeze in the Bills of Entry filed at the time of import, the charge of suppression willful misstatement as levelled against the importer does not hold good and cannot be sustained.'
HELD THAT:- This appeal is disposed off by bearing in mind the fact that the appellant has succeeded on the ground of limitation. Since it is not inclined to interfere in the matter on that score, all contentions which would arise to the appellant could be raised in any other appropriate case.
Application disposed off.
-
2024 (10) TMI 1142
Condonation of delay of 263 days in filing this appeal - HELD THAT:- The reasons assigned for seeking condonation of delay are neither satisfactory nor sufficient in law so as to condone the delay - the application seeking condonation of delay is dismissed.
-
2024 (10) TMI 1141
Recovery of Customs duty in the form of IGST forgone in course of imports of the goods - violation of “Pre-import Condition” in the imports made against the advance authorization scheme during the period October 2017 to November 2018 - Jurisdiction - proper officer to issue SCN - Revenue neutrality - whether Ld. Commissioner of Customs, Ahmedabad does not have the jurisdiction to issue the impugned show cause notice for the goods imported through Mundra Ports and Nhava Sheva Ports? - time limitation - HELD THAT:- In almost all the cases, the appellant have fulfilled the pre-import condition, in some cases the bill of entry was re-assessed and appellant have paid the IGST for which they are not contesting on the ground that they are eligible for ITC under GST. In view of the above on the factual aspects of the case the demand of IGST along with the interest, fine and penalties are not sustainable. As regard the penalty corresponding to the IGST paid by the appellant since, the same is availed as ITC under GST there is no malafide on the part of the appellant. Hence, penalty corresponding to the duty paid by the appellant which is not in contest will also not sustain on the ground of Revenue neutrality.
In the facts of the present case the appellant‟s bills of entry were assessed and the same were verified by the custom authority and clearance of goods was allowed. The issue raised in the present show cause notice was very much existing at the time of assessment of bill of entry. The appellant have bonafidely claimed the exemption Notification No.18/2015 as amended. Therefore, nothing prevented the department to raise the objection at the time of assessment of bills of entry and clearance of goods. Moreover, the issue involved interpretation of exemption notification on advance authorization - the suppression of fact cannot be attributed to the appellant. Accordingly, the extended period for demand is prima facie not invokable in the facts of the present case. Therefore, the appellant has made out a strong prima facie case on time bar.
Though entire case has been decided on factual matrix as discussed above, the demand of duty, interest, penalty and fine are not sustainable. However, the issue of levy of interest, fine and penalty has been independently considered by this Tribunal in the case of CHIRIPAL POLY FILMS LTD. VERSUS COMMISSIONER OF CUSTOMS-CUSTOMS AHMEDABAD [2024 (9) TMI 940 - CESTAT AHMEDABAD]. In view of the said judgment also, the appellant are also entitled for waiver of interest, penalty and redemption fine.
The impugned order is not sustainable - Appeal allowed.
-
2024 (10) TMI 1140
Levy of penalty under section 112(a) of CA, 1962 - Alleged forged DFRC license for import - HELD THAT:- There is no dispute insofar as the fact that the DFRC license is freely transferable. It is also a fact borne on record that the appellants were not even aware as to who was the holder of license once they admittedly sold it on 14.06.2007. Hence, it was for the buyer of DFRC license to register at the port of export and then apply for Telegraphic Release Advice – TRA, in terms of para 8 of the Public Notice No. 75/2000 dated 10.7.2000.
The above facts when considered relied up on by the appellants, cumulatively suggest that as pointed out by the bench, it is nowhere seen as to the mischief played by the appellants insofar as the alleged change that was alleged by the revenue. Hence, when the role of these appellants itself are not clear, saddling them with penalty is not in accordance with law.
The impugned orders is set aside - deletion of penalty imposed on the appellants - appeal allowed.
-
2024 (10) TMI 1139
Classification of goods - steaming (non-coking) coal in bulk - non-submission of country-of-origin certificate - Benefit of concessional rate of BCD under ASEAN FTA Preferential Tariff Agreement - HELD THAT:- There was an alteration / correction made in the COO certificate which was did not satisfy the provisions of procedure 9 of operational certification procedures for the Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement Between the Government of Member States of the Association of South East Asian Nations (ASEAN) and the Republic of India) Rules 2009.
It is felt that denying substantial benefits only for technical errors would not do justice to the appellant. While the authenticity of COO is doubted by revenue on this score, nothing concrete has been mentioned in the impugned order to justify the doubt, except for the correction made and the date of the COO certificate being after the date of shipment. Doubt is not a substitute for proof. There is no other taint on the validity of the certificate. The procedure mentioned in the Rules to check any doubt regarding the COO certificate was not followed.
The impugned order is set aside and the appeals are allowed.
............
|
9911796707
