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Showing 421 to 440 of 1445 Records
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2024 (3) TMI 1025
Rejection of petitioner’s application for amendment of the registration, namely, change in address of the petitioner - no opportunity of a hearing was granted to the petitioner before the order is passed - violation of principles of natural justice - HELD THAT:- On a plain reading of Section 28, it is clear that sub-section (1) is an obligation of every registered person and a person to whom a Unique Identity Number (UIN) has been assigned to mandatorily inform the proper officer of any changes in the information furnished at the time of registration or subsequent thereto, in the form as prescribed. Sub-section (2) thereof provides that the proper officer may on the basis of information furnished under sub-section (1) or as ascertained by him, approve or reject amendments in the registration particulars in such manner and within such period as may be prescribed.
The mandate of proviso below sub-section (2) of Section 28 as applied to the present facts brings about a consequence that the impugned order would be required to be held to be in breach of sub-section (2) of Section 28 inasmuch as the petitioner was not granted an opportunity of being heard before the impugned order was passed. Such action on the part of respondent no. 3 clearly breached the mandate of proviso below sub-section (2) of Section 28. On such count alone, the impugned order would be rendered bad and illegal.
This apart, there are serious consequences which are brought about in rejection of an application for amendment. The impugned order also cannot be sustained for the reason that no reasons whatsoever are furnished in rejecting the petitioner’s application for amendment of the registration. It is well settled that in passing any quasi-judicial order, necessarily reasons are required to be attributed, as the reasons would not only demonstrate an application of mind by the concerned officer in taking the decision but also it would enable the person whose application is rejected to know as to what were the reasons which weighed with the authority in rejecting the application. Thus, in the absence of any reason, any quasi-judicial order would be rendered arbitrary, which the law would not recognize to be a valid order.
There can be no two opinions that the impugned order dated 3 November, 2023 would be required to be quashed and set aside - Petition allowed.
Suspension of registration of the petitioner and issuing show cause notice for cancellation of the registration - blocking of Input Tax Credit of the petitioner - HELD THAT:- There appears to be much substance in the contentions as urged on behalf of the petitioner. It appears that the basis for suspension of the petitioner’s registration is on the very issue on the petitioner’s place of business, which was subject matter of the amendment application filed by the petitioner. Such amendment application being rejected, has already been set aside by us by the order passed in the aforesaid Writ Petition. Sofar as the blocking of ITC is concerned, the same has clearly arisen from such issues on the place of business of the petitioner in regard to which an amendment application was filed by the petitioner to amend the registration.
Respondent no. 3 needs to pass an order on the application of the petitioner for amendment of registration within a period of two weeks and subject to the orders which may be passed thereon further appropriate course of action can be adopted as may be permissible in law on any suspension of the petitioner’s registration, as also on the blocking of the ITC if so necessitated - thus, insofar as the show cause notice dated 20 December, 2023 issued to the petitioner by respondent no. 3 is concerned in regard to the cancellation of the registration and considering the reasons as set out in the show cause notice, the fate of the same would certainly depend upon on the orders which respondent no. 3 would intend to pass on the petitioner’s amendment application.
Petition disposed off.
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2024 (3) TMI 1024
Validity of show cause notice/assessment orders issued by the respondent-GST Department - demand of GST on royalty paid to the respondent-Mining Department towards mining lease - HELD THAT:- In Sudershan Lal Gupta’s case [2022 (10) TMI 43 - RAJASTHAN HIGH COURT], the Division Bench of this Court has held that the action of respondents with regard to imposition of GST on royalty is not liable to be interfered with.
This writ petition is dismissed in terms of the orders passed by this Court in Sudershan Lal Gupta’s case - the stay petition also stands dismissed.
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2024 (3) TMI 1023
Grant of bail - registration under GST obtained on the basis of forged documents - fraudulent evasion of tax - HELD THAT:- The petitioner is directed to be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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2024 (3) TMI 1022
Recovery of service tax - Validity of instruction issued by the department to the Bank - Restriction from permitting any withdrawal from the accounts held by the appellant until the service tax liability is fully satisfied - Post GST era - HELD THAT:- Ext. P6 order has been passed after complying with all the statutory formalities and giving sufficient opportunity to the appellant for hearing. It cannot be said that Ext. P6 was passed without jurisdiction or without complying with the principles of natural justice. Without challenging Ext. P6 in appeal, the appellant cannot challenge the same in the writ petition. Hence, the challenge against Exts. P6 and P8 must fail.
Appellant submitted that the appellant may be granted instalment facility to clear off the liability, and he may be permitted to operate the bank account on payment of the first instalment. The learned standing counsel for the respondents submitted that the Commissioner has the power to grant a maximum of 24 instalments.
Considering the facts and circumstances of the case and the present financial condition of the appellant, the appellant can be permitted to clear off the service tax liability by way of instalments - appellant shall make a payment of Rs. 25,00,000/- towards the service tax liability on or before 31st January, 2024 - Appeal disposed off.
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2024 (3) TMI 1021
Claim of long-term capital gains on shares in terms of Section 10(38) - Assessee not claiming exemption u/s 10(38) at the stage of the assessment proceedings but turned around and make such claim of wanting to cross-examine persons - Denial of principles of natural justice - denial of an opportunity to cross examine the entry providers -
HC [2023 (2) TMI 392 - ORISSA HIGH COURT] held that claim for benefit of Section 10(38) of the Act and denial of an opportunity to cross examine the entry providers, turned on facts. ITAT was justified in accepting the plea of the Assessee that the failure to adhere the principles of natural justice went to the root of the matter. Also, the CBDT circular that permitted to the Assessee to file revised returns if he omitted to make a claim was also not noticed by the AO.
HELD THAT:- There is gross delay of 298 days/300 days in filing this special leave petition. The explanation offered is not sufficient in law to condone the delay.
Hence, the application seeking condonation of delay is dismissed. Consequently, the special leave petition is also dismissed, keeping open the question of law, if any.
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2024 (3) TMI 1020
Depreciation u/s 32(1)(ii) in respect of intangible assets - Goodwill - Acquisition of business - net assets taken over and the particulars of liability, loans etc - Only contention which has been raised by learned counsel for the revenue is that the assessee has not disclosed the particulars of intangible assets, which have been acquired by it and therefore, it is not entitled for the benefit of depreciation under Section 32(1) - as decided by HC [2020 (12) TMI 672 - KARNATAKA HIGH COURT] perusal of the order passed by the Assessing Officer itself it is axiomatic that he has found that the goodwill has been calculated and has been allotted to intangibles - HELD THAT:- We are not inclined to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (3) TMI 1019
Reopening of assessment u/s 147 - Reasons to believe - as alleged there is net reduction of income through misuse of CCM - reliance on information recieved from Ahmedabad Investigation Directorate [Directorate] - Assessee pointed difference and disparity between the information provided to the petitioner and the reasons as existing on the record of the responde - HELD THAT:- Information which triggered the initiation of action was based upon an information received via email from the Ahmedabad Investigation Directorate [Directorate]. The aforesaid report alluded to certain conclusions prima facie arrived at by that Directorate on analysis of data received from the National Stock Exchange, and on the basis whereof the Directorate opined that the Client Code Modification [CCM] system had been used as a tool for tax evasion. Upon receipt of the aforesaid report, the AO while apprising the petitioner of the reasons which warranted re-assessment being undertaken, referred to the report of the Directorate and alluded to an ‘orchestrated misuse’ of CCM with a motive to evade tax. It also referred to a coordinated limited purpose survey undertaken under Section 133A of the Act at the premises of twelve brokers as well as their clients across India in March 2015.
The recordal of facts and reasons in the proforma would clearly indicate that information was identically transcribed on the record of the respondent as well. In our considered opinion, the minor discrepancies in the language employed by the respondent, and as it stands reflected in the reasons provided to the petitioner, and that which exists on the record, would clearly not justify us interfering with the impugned notice and the order impugned for reasons which follow. As would be evident from a perusal of the reasons which were supplied to the petitioner, there is a clear and unequivocal expression of opinion of the AO with respect to the material on the basis of which reassessment was sought to be commenced. The proforma also alludes to the same material and record.
There is thus no variation or difference in the foundational material on the basis of which the AO came to form the opinion that income has likely to have escaped assessment. What needs to be emphasized while dealing with challenges like the present is that we would not countenance two separate and distinct set of reasons being maintained by the respondent for commencement of reassessment. The reasons which are conveyed to the assessee must be the same as those which exist on the record. A minor variation in the language in which that information is conveyed to the assessee would not constitute a justifiable ground to interfere with the reassessment power. Decided against assessee.
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2024 (3) TMI 1018
Substantial question of law to be made out u/s 260A or not? - Undisclosed income surrendered during the Search and Seizure action - to be taxed at normal rate or tax rate stipulated u/s 115BBE of the Income Tax Act - ITAT confirming the Order of CIT(A) that the undisclosed income surrendered during the Search and Seizure action, is liable to be taxed at normal rate instead of the tax rate stipulated under Section 115BBE of the Income Tax Act? - HELD THAT:- From a bare reading of the Section, it is apparent that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the Act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. See MADAN LAL VERSUS GOPI (MST.) & ANR [1980 (8) TMI 204 - SUPREME COURT], WB. ELECTRICITY REGULATORY COMMISSION [2002 (10) TMI 772 - SUPREME COURT] and METROARK LTD. [2004 (1) TMI 397 - SUPREME COURT]
Thus in the instant case no substantial question of law arises from the order of the Tribunal as the appellant has raised all the question of facts and have disputed the fact findings of the ITAT in the garb of substantial questions of law which is not permitted by the statute itself.
This Court refrains from entertaining this appeal as there is no perversity in the order passed by the ITAT since the ITAT has dealt with all the grounds raised by the appellant in the order impugned and has passed a well reasoned and speaking order taking into consideration all the material available on record.
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2024 (3) TMI 1017
Revisional jurisdiction u/s 264 - Application u/s 264 rejected as intimation u/s 143(1) of the Act is not an order amenable to revisional jurisdiction u/s 264 - Computation of Capital Gains - Exclusion of the portion of the sale consideration that was never received - HELD THAT:- Since we have held in Diwaker Tripathi [2023 (9) TMI 159 - BOMBAY HIGH COURT] that the intimation under Section 143(1) of the Act was amenable to revisional jurisdiction under Section 264 of the Act, we hereby quash and set aside the impugned order dated 23rd March 2016 passed by Respondent No. 1.
atter is remanded to Respondent No. 1 to pass a fresh order on the application of Petitioner on the basis that the capital gains on the transfer of shares of the company should be computed after reducing proportionate amount withdrawn from the escrow account from the full value of consideration and allow the refund of additional tax paid with interest. Unless there is any other claim of Revenue against Petitioner that would permit Revenue to legally adjust the refund amount, the refund with interest shall be paid over within two weeks of passing the assessment order. The order shall be passed within six weeks from the date this order is being uploaded, after giving a personal hearing to Petitioner, notice whereof shall be communicated atleast seven working days in advance.
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2024 (3) TMI 1016
Nature of receipt - Addition on account of notional sales tax - treated as revenue receipt by the A.O - HELD THAT:- The issue is covered by the order of the Apex Court in GUJARAT ALKALIES AND CHEMICALS LTD. [2023 (6) TMI 1046 - SC ORDER], INDIAN PETROCHEMICALS CORPORATION LTD. [2016 (9) TMI 110 - GUJARAT HIGH COURT] - No substantial question of law arise.
Disallowance u/s 14A - Tribunal restricting the expenses u/s. 14A at 0.50% of the exempt income as against disallowance of Rs. 87.85 made by the A.O - HELD THAT:- AO has not given any reasons as to why he was not satisfied with the disallowance of Rs. 3.88 crores made by assessee and, therefore, cannot be faulted for restricting the expenses under Section 14A disallowing at 5% of the exempted income.
TP Adjustment - addition of guarantee commission - Tribunal restricting the guarantee commission to 0.38% of the guaranteed amount as against at 2.90%, as determined by the A.O - HELD THAT:- TPO has not given any reasons why according to him the guarantee amount should be 2.90% and not 3.8%. Therefore, we do not find any error finding arrived at by the ITAT.
Interest referable to interest free loans and advances to LIBOR - Tribunal restricting the interest referable to interest free loans and advances to LIBOR +1.50% as against at 7.5%, as determined by the A.O. on the basis of RBI Circular - HELD THAT:- Counsels agreed that this question requires to be admitted.
Depreciation directing to adopt the WDV of the assets as on 01.04.2007 - HELD THAT:- This question raises an issue which is merely consequential to the final decisions of the earlier years. Assessee is entitled to depreciation on the opening WDV and the additions made to such WDV during the year. The opening WDV is the amount of the closing WDV of the earlier year as finally determined. In this Question, the Revenue is seeking to reduce the value of the opening WDV on the basis of the stand taken by the Revenue in the earlier years. As the issue raised in this question is only consequential and effect will have to be given to the final decision in the earlier years, there is no question of law which arises for consideration in this year.
Deduction u/s 80IA - rate to be adopted for determining the profit of the captive power generation unit which is eligible for deduction - Assessee contends that the rate at which electricity is supplied to the customer should be considered whereas the Revenue contends that profit should be restricted to 16% of the investment or capital base - HELD THAT:- This issue is covered in favour of assessee by the decision of this Court in the assessee's own case in the earlier assessment year being Question No. C in M/s Reliance Industries Ltd. [2019 (2) TMI 178 - BOMBAY HIGH COURT] as held market value of the power supplied to the Steel-Division should be computed considering the rate of power to a consumer in the open market and it should not be compared with the rate of power when it is sold to a supplier as this is not the rate for which a consumer or the Steel Division could have purchased power in the open market. The rate of power to a supplier is not the market rate to a consumer in the open market.AO committed an illegality in computing the market value by taking into account the rate charged to a supplier: it should have been compared with the market value of power supplied to a consumer.
The Apex court in the case of CIT v Jindal Steel & Power Limited [2023 (12) TMI 417 - SUPREME COURT] as affirmed the aforesaid decision of the Bombay High Court in the assessee's own case. Further, it is not the case of the Revenue that insertion of Section 80A(6) of the Act has made any change in law as the AO in coming to its conclusion has himself relied on the assessment order for the earlier years. For the reasons given in the said judgment, there is no question of law which arises for consideration.
Appeal is admitted on the following question of law :
“Whether on the facts and in the circumstances of the case and in law, Hon'ble Tribunal was right in restricting the interest referable to interest free loans and advances to LIBOR +1.50% as against at 7.5%, as determined by the A.O. on the basis of RBI Circular?
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2024 (3) TMI 1015
Addition u/s 68 - bogus share application/allotment money - genuineness of the share capital could not be established - ITAT deleted addition - HELD THAT:- Tribunal affirmed the order passed by the CIT(A) by recording a factual finding that the three necessary ingredients, namely, identity, creditworthiness of the share applicants and genuineness of the transaction as provided u/s 68 of the Act have been established and there was no ground to interfere with the order passed by the CIT(A) - No question of law much less substantial question of law is arising for consideration in this appeal.
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2024 (3) TMI 1014
Validity of reopening of assessment - prerequisite for reopening assessment - Non disposal of objections given by appellant against reassessment - HELD THAT:- As carefully perusing the materials placed on record, we find that the learned Tribunal on considering the factual position rightly noted that the objections given by the appellant for initiation of re-assessment were not disposed of by the AO. The law on the subject has been rightly taken note by the Tribunal and we find the matter being entirely factual, no question of law much less substantial question of law arise for consideration.
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2024 (3) TMI 1013
Interest on Refund u/s 7 of the DTVSV Act, 2020 - petitioner’s right to interest on declared refunds due from the Department, determined in the Final Order passed under the Income Tax Act, 1961 - taxability of the transaction, the amount payable by the petitioner is the amount of tax due sans the penalty and interest in terms of Sl. No.(a) to Table to Section 3 of DTVSV Act, 2020 - refunds ordered in Form-3 for Assessment Year 1999-2000 to 2002-2003 to be re-calculated along with interest u/s 244-A
HELD THAT:- Under Section 7 of the DTVSV Act, 2020, any amount paid in excess in pursuance of the declaration is not refundable. However, where the declarant had, before filing the declaration under Sub-Section (1) of Section 4, paid any amount under their Act, 1961 in respect of his tax arrears which exceeds the amount payable under Section 3, shall be entitled to a refund of such excess amount.
Such a declarant is not be entitled to interest on such excess amount under Section 244-A of the IT Act, 1961. Section 7 of DTVSV Act, 2020 is a complete code by itself. If the case is to be settled under it, no interest under Section 244-A of the IT Act, 1961 is available.
In this case, no amount was paid by the petitioner either along with Form-1 on 31.1.2021 or after Form-3 that was issued on various dates. The petitioner wants the Designated Authority to issue a fresh Form-3 together with interest on refunds under Section 244-A of the IT Act, 1961 on belated adjustment of refunds. This is not available in view of explanation to Section 7 of the DTVSV Act, 2020.
Designated Authority while issuing Form-3 has correctly acceded to refund of the amounts to the petitioner for the Assessment year 1999-2000 to 2002-2003. The Designated Authority has declined to order interest under Section 244-A of the IT Act, 1961. It is in accordance with explanation to Section 7 of the DTVSV Act, 2020.
Neither the Deputy Commissioner of Income Tax, International Taxation nor the Designated Authority were required to order refund of the amount for the Assessment Year 1999-2000 and Assessment Year 2000-2001 in Form -3, as no amount was paid in excess by the petitioner. There was only adjustment of the refunds due for the Assessment Year 2004-2003 and Assessment Year 2005-2006. In fact, the Deputy Commissioner of Income Tax, International Taxation while passing order dated 29.01.2021 under Section 154 of the IT Act, 1961 was not required to order interest under Section 244-A of the IT Act, 1961 for the Assessment Years 1999-2000 and 2000-2001.
The excess amount after adjustment were to be refunded along with interest under Section 244-A for the Assessment Year 1999-2000 and Assessment Year 2000-2001. The excess amount after adjustment were to be refunded along with interest under Section 244-A read with Section 245 of the IT Act, 1961 for the Assessment Year 2004-2005 and Assessment Year 2005-2006.
For these two Assessment Years viz., Assessment Year 1999-2000 and Assessment Year 2000-2001, there were mere adjustment of the amounts towards tax liability out of the refunds that were due to the petitioner for the Assessment year 2004-2005 and Assessment Year 2005- 2006.
Excess amounts after adjustments of the liability ought to have been refunded together with interest under Section 244-A of the IT Act, 1961 for the Assessment Year 2004-2005 and Assessment Year 2005- 2006, provided no applications were filed for Assessment Year 2004-2005 and Assessment Year 2005-2006 under Sl.No.(a) to Section 3 of the DTVSV Act, 2020.
For the Assessment Year 2001-2002 and for the Assessment Year 2002-2003, the petitioner was entitled to interest under Section 244-A of the IT Act, 1961, if no declaration was filed under DTVSV Act, 2020. Interest under Section 244-A of the IT Act, 1961 will not be available to the petitioner in view of explanation to Section 7 of the DTVSV Act, 2020. It makes it clear, that a declarant shall not be entitled to interest under Section 244-A of IT Act, 1961 on such excess amounts.
Therefore, the petitioner is not entitled to the relief as prayed for in full.
Therefore, to do complete justice and to balance the interest of the petitioner and the Income Tax Department, these writ petitions are disposed with the following directions/orders/ observations:-
i. The amounts adjusted and appropriated towards tax liability for the Assessment Year 1999-2000 and Assessment Year 2000- 2001 under the provisions of the Direct Tax Vivad Se Vishwas Act, 2020 from and out of the refunds due for the Assessment Year 2004-05 and Assessment Year 2005-06 are treated as amount paid by the petitioner for the Assessment Year 1999-2000 and Assessment Year 2000-2001 under Direct Tax Vivad Se Vishwas Act, 2020;
ii. Consequently, the Designated Authority or any other Authority in its place shall issue Form 5 to the Petitioner and close the pending case of the petitioner for the Assessment Year 1999- 2000 and Assessment Year 2000-2001;
iii. Consequently, the Income Tax Department is directed to process the excess amount quantified as refundable in Section 154 orders dated 29.01.2021 for the Assessment Year 1999-2000 and Assessment Year 2000-2001 together with interest under Section 244-A of the IT Act, 1961 for Assessment Year 2004-2005 and Assessment Year 2005-2006, subject to Section 7 of the Direct Tax Vivad Se Vishwas Act, 2020;
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2024 (3) TMI 1012
Estimation of income - bogus purchases - case of bogus bills arranged from the entities and diamonds purchased from somewhere else at a lower cost - CIT(A) restricted the disallowance to 12.5% of the alleged bogus purchases - HELD THAT:- Since the profit margin embedded in the transaction of alleged bogus purchases of cut and polished diamonds has been accepted at 5% in other years in assessee’s own case, following the rule of consistency in view of the peculiar facts of the present case, we deem it appropriate to restrict the disallowance to 5% of the disputed purchases in the year under consideration. As a result, grounds raised by the assessee on merits are partly allowed.
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2024 (3) TMI 1011
Penalty levied u/s 271(1)(c) - Estimation of income - bogus purchases - addition of 12.5% of the total purchases - HELD THAT:- As decided in MUKESH SHALIGRAM SHARDA [2023 (4) TMI 678 - ITAT MUMBAI] no penalty u/s 271(1)(c) is leviable on estimated additions.
Thus the impugned order deleting the penalty levied u/s 271(1)(c) of the Act is upheld. As a result, grounds raised by the Revenue are dismissed.
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2024 (3) TMI 1010
Revision u/s 263 - as per CIT AO has not examined increase in share capital - HELD THAT:- As gone through the entire facts and noticed that the PCIT while revising the assessment has simpliciter gone through the original balance sheet which is part of the assessment record. But the AO has never acted upon on the original balance sheet but he accepted the correct balance sheet filed during the course of assessment proceedings.
We find that the assessee has admitted the new balance sheet and the differentials between the original and rectified balance sheet which are part of assessee’s paper-book. We noted that on merits also, the assessee has explained the differentials and hence, the assessment order is neither erroneous nor prejudicial to the interest of Revenue because of non-verification of assessment. AO has verified the complete details as it is evident from the assessee’s paper-book that the AO asked for the entire details and the assessee replied the same on various dates. In view of the above, we allow the appeal of assessee and quash the revision order passed by the PCIT. Appeal filed by the assessee is allowed.
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2024 (3) TMI 1009
Capital gain computation - lease rental expenses are related to the transfer of slump sale business while computing the capital gain u/s 48(1) or not? - HELD THAT:- It is not in dispute that the company has incurred these charges to complete the transfer of the property as per scheme of agreement and leasehold rights in the land was part of the port undertaking which was transferred as per the scheme of arrangement.
When it was a slump sale section 45 & 48 do not bar the company from claiming expenses. So in order to compute the capital gains provisions contained under section 48 are applicable which provide that while computing the capital gain the value of consideration reduced by the cost of improvement and cost of acquisition and also expenditure incurred for transfers are to be considered.
When the income of the assessee is chargeable under the head capital gains qua the years in which transfers was affected, the expenses pertaining to the transfer, they crystallized later on but as per scheme of arrangement it has to be allowed.
So when the assessee has incurred the amount in question to complete the transfer as per scheme of arrangement approved by the Hon'ble NCLT, without which transfer could not have been effected, the Ld. CIT(A) has rightly and validly decided the issue in favour of the assessee.
Eligibility of deduction claimed by the assessee on account of stamp duty and registration charges for the purpose of computing the gains arising on demerger of port business - In view of the findings returned on the earlier issue when it is proved on record that the assessee is entitled for upfront lease rental expenses incurred in relation to the transfer of slump sale business while computing the capital gains under section 48(i) of the Act the assessee is also entitled for deduction of stamp duty and registration charges.
CIT(A) despite thrashing the facts has denied this relief to the assessee on the ground that no request for admission of any additional evidence or additional ground has been raised before him hence this claim cannot be entertained. When the amount has been crystallized in the books of account and facts have been brought on record before the Ld. CIT(A) which have not been disputed the claim of the assessee, otherwise admissible, cannot be denied on the basis of hyper technical reasons. Both the questions framed are answered in favour of the assessee. So the AO is directed to allow the stamp duty and registration charges after due verification.
Appeal filed by the Revenue is hereby dismissed and the cross objection filed by the assessee is hereby allowed.
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2024 (3) TMI 1008
TP Adjustment - comparable selection - assessee is aggrieved with inclusion of one comparable namely Golden Chemical Private Limited having PLI of 8.88% - HELD THAT:- As the relevant financial data of comparable company is available only for 9 months, whereas, the accounting period of the assessee is for 12 months and in absence of non-availability of the data in case of comparable company from 1st January, 2012, to 31st march, 2012, as same being Private Limited company, the above comparable for this reason is required to be excluded. Accordingly, the learned Transfer Pricing Officer is directed to exclude Golden Chemical Pvt. Ltd. from the comparability analysis. The appeal of the assessee on this issue succeeds.
Comparable Nilchem Industries Ltd. - We find that in the remand report proceedings, the learned Transfer Pricing Officer included the above comparable company i.e. Nilchem Industries Ltd. having the margin of 10.78%. The assessee did not object to this comparable company for its exclusion but provided the correction in the margin. The learned Transfer Pricing Officer recomputed the margin of (-) 3.23%. Thus, we find that Nilchem Industries Ltd. is a comparable not in dispute between the assessee and TPO, could not have been excluded by the learned CIT (A) when none of the parties contended so. Accordingly, we direct the learned TPO/ Assessing Officer to include the Nilchem Industries Ltd. as a good comparable.
Appeal of the assessee is partly allowed.
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2024 (3) TMI 1007
Penalty u/s 270A and 271AAB - Defective notice u/s 274 - allegation of non specification the basis of charge subject to which the penalty is imposed - as submitted allegation of the A.O. in the penalty notice was only regarding "under reporting of income" post search and seizure - HELD THAT:- In the instant case, on perusal of the penalty notice placed on record it is evident that the Ld. AO had show caused the assessee as to why the assessee should not be imposed with penalty for ‘under reporting of income’. The assessee had filed its submissions stating that he had not ‘under reported its income’.
We are unable to comprehend ourselves to accept to the argument of the Ld. DR that assessee did not make any submissions with regard to ‘mis reporting of income’. The assessee could be expected to give reply only in respect of show cause notice that is put to him. Why at all the assessee should infer/ assume/presume that the Ld. AO having recorded satisfaction in the quantum assessment order that offence of both ‘under reporting’ and ‘mis reporting’ is committed by the assessee and accordingly the penalty would be levied on the assessee for both in terms of section 270A(9) of the Act?
It is well settled that penalty proceedings and assessment proceedings are separate and distinct.
Hon’ble Supreme Court in the case of Anantharam Veera Singhaiah & Co. [1980 (4) TMI 2 - SUPREME COURT] wherein it was held that findings recorded in assessment proceedings cannot be taken as conclusive for penalty proceedings. Even the provisions of section 270A(6) of the Act provides for granting immunity from penalty if the case falls in “under reporting of income”. Moreover different rates of penalty are prescribed for ‘under reporting of income’ alone and for ‘under reporting’ in consequence of ‘misreporting of income’. Hence it is all the more essential to mention in the show cause notice itself as to which of the offence is committed by the assessee for which explanations are being sought for by the Id. AO. There is no whisper at all in the notice issued u/s 270A read with section 274 of the Act about “misreporting of income”.
In-fact two notices were issued by the Id. AO and in both the notices, the A.O. had only directed the assessee to reply with regard to ‘under reporting of income’. But we find that the penalty had been levied ultimately for both ‘under reporting’ and ‘misreporting of income’ @ 200% in terms of section 270A(9) of the Act for which show cause notice was never issued to the assessee.
Hence we direct the Ld. AO to delete the penalty levied u/s 270A of the Act for the Assessment Year 2017-18. Accordingly, we allow the Appeal of the Assessee on this technical ground.
Penalty u/s 271AAB - As no specific charge has been mentioned in the penalty notice issued u/s 271AAB of the Act, we delete the penalty imposed by the A.O. On this technical grounds for the Assessment Years 2018-19 & 2019-20.u/s 271AAB.
Appeals of assessee allowed.
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2024 (3) TMI 1006
Assessment proceedings against one of the legal heirs - deceased/assessee had admittedly more than one legal representatives - deceased father has six sons - Addition u/s 69A - cash deposits made in his bank accounts during the demonetization period - HELD THAT:- As undisputed fact for the Asst. Year 2017-18, the assessee has not filed his Return of Income, since there is no taxable income in his hands and also for the reasons of wound-up of his business activities. However during demonetization period, the assessee made cash deposits in his three Bank Accounts.
In the meanwhile, the assessee died on 28.01.2019. Thereafter the final show cause notice was issued by the Ld. A.O. on one of the legal heir namely Shri Vijay Laxmichand Demla filed a detailed letter that his deceased father has six sons and given their details. Further he refused to accept any responsibility, since he is not sole legal heir for the estates of his deceased father and also he was not in possession of any details/documents regarding his father’s cash deposits which was rejecgted by AO.
Assessing Officer when put to notice about the death of the assessee and the details of the six legal heirs of the deceased assessee, A.O. ought not have proceeded with only one of the legal heir namely Shri Vijay Laxmichand Demla in spite of his specific objection - Admittedly the legal heir Shri Vijay Laxmichand Demla is not only the legal heir on the estate of the deceased. Thus the Assessing Officer having not included all the legal heirs of the deceased assessee and framed the assessment only against one of the legal heir is against the provisions of law and the assessment is invalid in law. Thus the entire assessment is hereby quashed. Assessee appeal allowed.
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9911796707
