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Showing 61 to 80 of 1343 Records
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2023 (5) TMI 1283 - ITAT AHMEDABAD
Late payment of PF and ESIC contribution - amount deposited before the due date of filing of the Income Tax Return - disallowance in the intimation passed u/s. 143(1) - HELD THAT:- We note that identical issue is dealt by us recently and decided against the assessee by the Co-ordinate Bench of the Tribunal [2023 (4) TMI 1281 - ITAT INDORE] after taking into account the latest judgment of Checkmate Services (P.) Ltd.[2022 (10) TMI 617 - SUPREME COURT] held that non obstante clause under section 43B could not apply in case of employee's contribution which were deducted from their income and was not part of assessee-employer's income and, thus, said clause would not absolve assessee-employer from its liability to deposit employee's contribution on or before due date as a condition for deduction.
Contention of the assessee CPC should not have made the disallowance u/s. 36(1)(va) in 143(1) proceedings which is a debatable and controversial issue by different High Courts - he provisions of Section 143(1)(a) deals with the total income or loss shall be computed after making the following adjustments namely “(ii) an incorrect claim, if such incorrect claim is apparent from any information in the return”. Thus we are of the considered opinion as per the first proviso to section 143(1)(a), CPC had given a communication dated 19.02.2019 to the assessee, why not to make a disallowance 36(1)(va) being the late payment of PF and ESIC. However the assessee has not responded to the communication issued by the CPC. It is, thereafter as per section 143(1)(a)(ii), being an incorrect claim made by the assessee, which is apparent from the information filed in the Return of Income, thus the CPC rightly made the disallowance, which is well within the provisions of law.
Thus we are of the considered view, the disallowance of late payment of PF & ESIC made u/s. 143(1) is valid in law. Thus the grounds of appeal raised by the assessee are devoid of merits. The case laws relied by the assessee are prior to the judgment passed by the Hon’ble Supreme Court in the case of Checkmate Services (P.) Ltd.[supra] Thus the grounds raised by the assessee are hereby dismissed.
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2023 (5) TMI 1282 - SC ORDER
Grant of interim protection - HELD THAT:- ECIR was registered on 31.01.2011. The prosecution complaint was registered on 29.06.2018. The appellant was not named therein. But in the supplementary complaint filed on 23.12.2022, the appellant was named.
During this entire period of eleven years, the appellant was not arrested - Appeal allowed - the interim protection granted to the appellant on 24.03.2023 is made absolute.
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2023 (5) TMI 1281 - SC ORDER
Money Laundering - maintainability of petition - availability of alternative remedy - provisional attachment of properties - HELD THAT:- The appeal stands allowed in terms of the signed order.
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2023 (5) TMI 1280 - ALLAHABAD HIGH COURT
Application filed under section 319 Cr.P.C. to summon the applicant - compromise between the parties was arrived at between them to their satisfaction and the contesting parties were satisfied by the said compromise - Permissibility of the piecemeal compromise between the parties - Expression of word 'Evidence' in Section 319 Cr.P.C.
Permissibility of the piecemeal compromise between the parties - HELD THAT:- The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by the distorted perceptions and is not slave to anything, except to caution and circumspection, the standard of which the Court sets before it, in exercise of such plenary and unflattered power inherently vested in it while donning the cloak of compassion to achieve the end of justice. No embargo, be in a shape of Section 320 Cr.PC.(Cr.P.C.) or any other such curtailment, can whittle down the powers under section 482 Cr.P.C.
Similarly, when the Revisional Court considered, it has been clearly mentioned that the offence is not compoundable offence under the provision of Section 320 Cr.P.C, and therefore, it has been mentioned that said compromise have got no bearing in the offence. This proposition of law is unswallowable and cannot be accepted. The scope and ambit of Section 482 Cr.P.C. is in much wider than that of Section 320 Cr.P.C.
Expression of word 'Evidence' in Section 319 Cr.P.C. - HELD THAT:- For the exercise of power under Section 319 Cr.P.C., the use of word `evidence' means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it, has also committed the offence, the court may summon such person under Section 319 Cr.P.C.
The word "evidence" therefore has to be understood in its widest sense, both at the stage of trial and, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial as well as the material collected during investigation or even in an inquiry.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet - the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
There are no hesitation to quash both the orders of learned A.C.M.M-III, Kanpur Nagar dated 22.11.2022 allowing the application under section 319 Cr.P.C. by the Public Prosecutor and when the same was challenged before the learned Sessions Judge, Kanpur Nagar by way of Criminal Revision No. 390 of 2022, the same was rejected confirming the orders of learned A.C.M.M-III, Kanpur Nagar - present application filed under section 482 Cr.P.C. hereby stands allowed.
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2023 (5) TMI 1279 - ITAT SURAT
Unexplained money being undisclosed gold, Jewellery found during the course of search - Applicability of section 115BBE when the date of search is 16.08.2016 - As argued on the date of search i.e. 16.08.2016, the amendment to section 115BBE of the Act which is applied by the assessing officer was yet to come into the statute as the said amendment came into effect after demonetization by Taxation Laws (Second Amendment) Bill 2016 which is effective from 01.04.2017,hence provision of section 115BBE of the Act has been applied retrospectively - HELD THAT:- We note that case of the assessee, under consideration is that the amendment in section 115BBE came into force only on 15.12.2016 whereas the search was conducted on 16.08.2016 and the assessee has paid tax @ 30%. Since the search in the case of the assessee was carried out before the amendment the addition ought to have been made in terms of the prevailing provision and therefore, the addition made by the assessing officer invoking section 115BBE, provision of which came into force only on 01.04.2017, is not sustainable. Therefore, we allow the appeal of the assessee.
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2023 (5) TMI 1278 - ITAT BANGALORE
Disallowance of interest expenditure u/s 36(1)(iii) - advances to sister concerns - AO observed that the advance paid to sister concern was capital in nature, because the loan advanced to it was for purchase of land and it was not put to use during the impugned assessment year, therefore the interest expenditure should be capitalized instead of claiming it as revenue expenditure - AR strongly submitted that proviso to section 36(1)(iii) is not applicable in the present facts of the case and submitted that assessee had sufficient internal accruals during the impugned assessment year which is evident from the cash flow statements which is part & parcel of the financial statements - HELD THAT:- On going through the ledger account of sister concern in the books of the assessee company, it is noticed that the interest free funds have been given on various dates on piece-meal basis and the amount has also been received back from the sister concern on different dates, but no interest has been charged on the advances.
We further note since the internal cash accruals from operations are more than the interest free funds advanced to the sister concern for business purposes, it cannot be said that the interest bearing loan funds had been utilized by the assessee for the purpose of giving interest free advances over the years to its sister concern - In view of this factual finding and relying on the judgment of Munjal Sales Corporation v. CIT [2008 (2) TMI 19 - SUPREME COURT] we hold that proviso to section 36(1)(iii) is not applicable in the present case. Accordingly, we set aside the order of the CIT(Appeals) and delete the addition. Decided in favour of assessee.
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2023 (5) TMI 1277 - ITAT AHMEDABAD
Condonation of delay - delay of 1976 days - Department launched prosecution case against the assessee on 14.05.2018 by filing a criminal case against the assessee and the Hon’ble Additional Chief Metropolitan Magistrate, Ahmedabad passed an order on the assessee u/s 279(1) - HELD THAT:- The fact of Department having launched prosecution against the assessee came to the notice of the assessee only on the month of May / June 2021 on receipt of order of Hon’ble Additional Chief Metropolitan Magistrate, Ahmedabad. The assessee was advised by his consultant to file compounding application, which was filed before Principal CCIT on 03.12.2021. However, the Principal CCIT rejected the compounding application vide order dated 12.01.2022. It was owing to the aforesaid circumstances that there was a delay of 1976 days in filing of the present appeal before ITAT.
This is a fit case for condonation of delay. Accordingly, we are hereby condoning the delay of 1976 days in filing of the present appeal, in the interest of justice.
Penalty u/s 271(1)(c) - Additional income on account of excess stock u/s 69B - HELD THAT:- As we are of the view that this is not a case of concealment of income and the excess stock found the case of M/s. Pankaj Textile was more or less neutralized on account of excess stock in the case of M/s. Sonal Fabrics and M/s. Mahek Impex. Further, at the time such excess stock was found by the Department, it is observed that since books of accounts were not written up to date of search, proper books stock could not be arrived at and as the physical stocks of various firms operating from the same premises were mixed, there arose a difference in the physical stocks as compared to the books stock. Accordingly, looking into the facts of the instant case we are of the considered view that at this is not a fit case for levy of penalty under Section 271(1)(c) of the Act. Accordingly, we are hereby directing that the levy of penalty under Section 271(1)(c) of the Act be set-aside.
Appeal of the assessee is allowed.
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2023 (5) TMI 1276 - SUPREME COURT
Restoration of decree of dismissal of the suit by the trial Court - Regular Civil Suit is one for possession of suit land on the strength of title - Plaintiff proves that he purchased the suit field from Defendants or not - sale deed was nominal and by way of collateral security and the said transaction was hit by the provisions of Section 8 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act or not - HELD THAT:- There is dichotomy between the contention of the first respondent/ the second defendant founded on the Fragmentation Act as mentioned above and also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9 (1) of the Fragmentation Act makes void only the transfer or partition of any land contrary to the provisions of the said Act. The word ‘transfer’ is not defined under the Fragmentation Act though the expression ‘land’ has been defined thereunder. As per Section 2 (5) of the Fragmentation Act, the term ‘land’ means, ‘agricultural land whether alienated or unalienated’ - A conjoint reading of Section 54 of the TP Act and Section 17 of the Indian Registration Act, 1908, mandates that transfer of ownership of any land worth more than Rs.100/- shall be effected by a registered deed. Therefore, transfer of a land worth more than Rs.100/- by a registered deed implies transmutation of all rights as the vendor possessed in the property concerned.
A conjoint reading of Section 36A and 36B of the Fragmentation Act would reveal that when a suit is instituted in a Civil Court, the Court concerned has to consider if the suit involves any issue(s) which is/are required to be settled, decided or dealt with by any competent authority to settle, decide or dealt with, such issues under the said Act. If it does, then after staying the suit the said issue(s) is to be referred to such competent authority for determination. Apparently, no such consideration had been made by the trial Court as also by the High Court.
A careful scanning of the impugned judgment would reveal that virtually, the High Court considered the validity of the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant under ‘the Fragmentation Act’, without directly framing an issue precisely on the same and then, decided the validity of the sale deed dated 21.04.1979 executed by the second defendant in favour of the plaintiff - the decision of the High Court on the validity of the sale transaction covered under the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant, in terms of the provisions under the Fragmentation Act (when that question was not legally available to be considered in the subject suit) and the virtual declaration of the said sale as void, are absolutely unsustainable. It is the product of erroneous assumption of jurisdiction and also erroneous and perverse appreciation of evidence.
The High Court has committed a serious error based on perverse appreciation of evidence, in setting aside the judgment and decree of the First Appellate Court decreeing the subject suit and in restoring the decree of dismissal of the suit of the trial Court.
Appeal allowed.
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2023 (5) TMI 1275 - ITAT MUMBAI
Income deemed to accrue or arise in India - PE in India - existence of a DAPE - whether Appellant has a business connection in India as per the provisions of section 9(1)(i) ? - scope of India-Ireland tax treaty - HELD THAT:- As issues raised by the assessee in the present assessment year are exactly similar to the issues decided by the Coordinate Bench in A.Y. 2015-162022 (11) TMI 31 - ITAT MUMBAI], we are inclined to follow the decision wherein as held there was no fixed place permanent establishment on the facts of this case.
As regards the existence of the dependent agency permanent establishment, that aspect of the matter, is wholly tax-neutral and does not, therefore, need our adjudication. Decided in favour of assessee.
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2023 (5) TMI 1274 - ITAT RAIPUR
Delayed payment of Employees Contribution to Employees Provided Fund/ESI - Intimation u/s 143(1) - AO held it as the assessee’s income u/s 36(1)(va) r.w.s 2(24)(x) while processing his return of income u/s.143(1) - HELD THAT:- The issue involved in the present appeal is squarely covered by the order of Kalpesh Synthetics (P) Ltd. Vs. DCIT [2022 (5) TMI 461 - ITAT MUMBAI] wherein held that when the due date under Explanation to Section 36(1)(va) is judicially held to be not decisive for determining the disallowance in the computation of total income, there is no good reason to proceed on the basis that the payments having been made after this due date is “indicative” of the disallowance of expenditure in question. While preparing the tax audit report, the auditor is expected to report the information as per the provisions of the Act, and the tax auditor has done that, but that information ceases to be relevant because, in terms of the law laid down by Hon’ble Courts, which binds all of us as much as the enacted legislation does, the said disallowance does not come into play when the payment is made well before the due date of filing the income tax return under section 139(1).
Thus reporting of payment beyond this due date in the tax audit report constituted “disallowance of expenditure indicated in the audit report but not taking into account in the computation of total income in the return” as is sine qua non for disallowance of Section 143(1)(a)(iv).
We thus respectfully follow the same and vacate the addition as summarily made by the A.O, CPC u/s.143(1)(a) - Decided in favour of assessee.
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2023 (5) TMI 1273 - MADHYA PRADESH HIGH COURT
Seeking grant of bail - defalcation of amount - Amicable settlement of disputes between parties - applicant has submitted that the involved amount of Rs. 68 lakhs being paid today only through demand draft to the complainant and the complainant has no objection if the bail application is allowed.
HELD THAT:- On perusal of the case diary as also the documents filed on record, taking note of the fact that the parties have amicably settled their dispute, this Court finds it expedient to allow the present bail application. Accordingly, without commenting on the merits of the case, the application filed by the applicant is allowed.
The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs. 25,000/- with one solvent surety in the like amount to the satisfaction of the trial Court for his/her regular appearance before the trial Court during trial with a condition that he/she shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973.
Application allowed.
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2023 (5) TMI 1272 - SUPREME COURT
Non-compliance of certain directions in certain districts - HELD THAT:- The fact that the directions in the case would apply to anticipatory bail cases was enunciated in the order dated 21.03.2023 and thus, there could not have been any confusion on this aspect - The States are directed to supply copy of standing orders within two weeks from today failing which their Home Secretaries will remain present in Court as nothing seems to work except the peremptory orders of this nature.
List on 08.08.2023.
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2023 (5) TMI 1271 - SC ORDER
Seeking grant of Bail - HELD THAT:- The appeal is allowed and the appellant is directed to be released on bail in connection with Case NO.01/LKZO/2018 dated 18.02.2018, lodged by the Enforcement Directorate, on the basis of F.I.R. No.0831 dated 19.06.2017 registered at Police Station Gomti Nagar, Lucknow, U.P., subject to the terms and conditions as imposed by the concerned Trial Court.
Bail application allowed.
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2023 (5) TMI 1270 - ITAT MUMBAI (LB)
Nature of land sold - Treatment to Gain on sale of land - assessee cannot cultivate the land or incapacitated to do so - agricultural land or "capital assets" u/s 2(14) - land as classified in the revenue records - difference of opinion among the Members of the Bench - third member appointment - AM decided the issue in favour of the assessee - As argued land is barren and devoid of any irrigation - HELD THAT:- Case of the land of the assessee satisfies the most of conditions laid down by the Hon’ble Supreme Court in Smt. Sarifabibi Mohammed Ibrahim vs. CIT[1993 (9) TMI 10 - SUPREME COURT] that major chunk of land (9.08 acres) in the land revenue records is classified as “Lagvadi Yogya Shetra” which means cultivable land and the land is admittedly subjected to payment of land revenue.The land has been recorded in the land revenue records as agricultural land and the same was never been put to any alternative use.
The land is ordinarily used for agricultural purposes and it is not the case of the department that it has ever been used or intended to be Zo ted Yor non-agricultural purposes. Since the land is situated in hill area and there was no direct source of irrigation, therefore, agriculture produce, under the circumstances, cannot be in proportionate to the land area. However, that fact cannot, in any manner, be said to affect the nature of the land being an ‘agricultural land’.
Lands in hilly areas are generally dependent upon rain waters for irrigation purposes. It is not the case of the Revenue that the assessee has ever applied to the concerned authorities for the change of land user.Though, it has been alleged that as per the revenue records for many years that no agricultural activity has been carried out at major chunk of the land, however, the assessee, in this respect, has explained that vegetables and other minor millets grown are not mentioned in the revenue records of the land situated in Raigad District.
Merely because of certain reason, whatever it may be, if an assessee cannot cultivate the land or incapacitated to do so, that will not change the nature of the land from agricultural to non-agricultural especially when there is no change of user of the land.
The land is not situated in a developed area. The physical characteristics surrender situations and use of the land in adjoining area as held by the CIT(A), indicate that the land was an agricultural land.
The land has not been developed by plotting an providing roads and other facilities. There was no previous sale of land for non-agricultural use.
The price of the land sold does not show that it was shown at a high price or that price was not proportionate to the price of the agricultural land in the area.The land has been specifically mentioned in the revenue record as cultivable land and there is no mention that the land is a barren land. The vacant or fallow land does not mean that it is a barren land.
There is no condition prescribed under the provisions of section 2(14(iii) of the Act that active agricultural activity should be there at the relevant time of sale of the land, rather, the only condition prescribed is that it must be classified as agricultural land.
Order of Third member- Land sold by the assessee being agricultural land not falling within the definition and scope of capital asset, cannot be subjected to capital gain tax. Therefore, agree with the view of the Id. AM.
In view of the majority opinion, we hold that the land sold by the assessee is an agricultural land and hence the gain arising therefrom cannot be subjected to Capital gains tax. Appeal filed by the Revenue is dismissed.
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2023 (5) TMI 1269 - CESTAT KOLKATA
Refund claim - Service Tax paid on reverse charge basis for the GTA Services utilized by them during the period May 2013 to October 2013 - refund rejected on the ground that the products cleared by them are not in the category of food stuff and the refund claim is hit by ‘unjust enrichment clause’ - HELD THAT:- It is observed from the order passed by the lower Authorities that as submitted by the Learned Counsel they have not given proper consideration to the detailed certificate issued by the Chartered Accountant wherein he has clearly stated that (i) Cenvat Credit has not been taken by the Appellant (ii) The amount of refund claim filed, has been shown as amount receivable/dues from the Service Tax Department.
When such an important document has been filed, the officials are required to give proper consideration for the same and give a clear finding as to why the same was not considered as proper evidence towards ‘unjust enrichment clause’. They have failed to do so.
Coming to the argument of the Learned AR that the initial assessment was not disputed and the Appellant has not gone for re- assessment, in this case, this point will not arise. Here the Appellant is not service provider who has filed their self-assessment order under ST 3 Return. They are service recipients and are bound to pay the Service Tax on RCM basis. In the case of RCM, the recipient does not the assess the Service Tax component nor can he challenge the same by way of re-assessment.
It is deemed fit to remand the matter to the Adjudicating Authority for the following limited purpose:-
(i) The Appellant will produce the original copy of the Chartered Accountant’s Certificate dated 22/03/2014. They will also submit copies of their Balance Sheet from period 2010 to till the present financial year to substantiate their claim that this amount is still being shown as receivable/recoverable from the Service Tax Department.
(ii) The Adjudicating Authority is directed of confine himself to examine these two aspects and pass a considered decision without rising any further issue on account of any other document.
Appeal allowed by way of remand.
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2023 (5) TMI 1268 - DELHI HIGH COURT
Reopening of assessment u/s 147 - Allegation against the petitioner is that because of the activities carried out by it, the benefits available to it under Sections 11 and 12 may not be available - HELD THAT:- As referring to income and expenditure account of the AY in issue expenditure that has been registered by the petitioner is Rs. 67,49,006/-, against which an adjustment of unutilized amount under Section 11(1) Explanation 2 amounting to Rs. 2,59,903/- has been made. Thus, the net expenditure, which has been registered by the petitioner, is the figure that we have noticed above as the alleged escaped income, i.e., Rs. 64,89,103/-.
As a matter of fact, the petitioner has registered a net loss amounting to Rs. 6,54,461/-. Therefore, there is a misalignment, to say the least, between the purportedly escaped income, as indicated in the notice issued under Section 148A(b), and the order passed under Section 148A(d) of the Act.
Given the aforesaid backdrop, in our view, the matter requires further examination. Accordingly, issue notice. Counter-affidavit will be filed within eight weeks.
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2023 (5) TMI 1267 - CESTAT AHMEDABAD
Penalty u/s 114(i) and 114(AA) of CA - Smuggling - fraudulent export of red sander under the guise of sanitary ware - Appellant submits that in the main offence of fraudulent export of prohibited red sanders the appellant had no knowledge, his job was to only arrange the container - HELD THAT:- It is found that the appellant was absolutely unaware about the concealment of prohibited goods in the container for export. His job is to provide the empty container to the exporter. Therefore, as admitted by the Learned Commissioner (Appeals) he had no ulterior motive or knowledge for any act of commission or omission therefore, merely because he did not inform after knowing about the concealment penalty cannot be imposed, for the reason that he came to know about the illegal export of red sander before the custom has already intercepted the containers at the port of export and the containers were put on the check packages. In this fact there is no question or need to inform the authorities as neither he was aware of the offence nor he was involved therein.
From the finding the Learned Commissioner appeal has clearly held that the appellant had no knowledge about any of the act which make the goods liable to confiscation. Despite his clear finding he upheld the reduced penalty.
There are no reason or role of the appellant to attract penalties under Section 114 (i) and Section 114 (AA) - penalties set aside - appeal allowed.
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2023 (5) TMI 1266 - DELHI HIGH COURT
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2023 (5) TMI 1265 - PUNJAB AND HARYANA HIGH COURT
Grant of Interim Bail - appropriate forum - non-bailable offence - petitioners contends that the custody of petitioners No. 2 and 3 being illegal, they need not to keep in custody merely because the petitioners have, instead of approaching the trial Court, approached the High Court by way of present petition - HELD THAT:- Keeping in view the facts and circumstances of the present case, where on the bare reading of the FIR and as per the short reply, which has been filed by the respondents, the factual aspect is not disputed with reference to the allegations against the petitioners especially with regard to petitioners No. 2 and 3. The said allegations in the FIR do not make out an offence which would be non-bailable qua them.
Under those circumstances, firstly, the officer, who had taken these two petitioners in custody, could not have done so without making them aware of the fact that they could avail of the remedy of release on submission of bail bonds or surety. The same would be the position as regards the order of remand at the hands of the Duty Magistrate as also the Special Court. It appears that at no stage, the provisions of the Statute were actually gone into or seen. In a mechanical manner, initially the Arresting Officer and thereafter, the Judicial Officers proceeded to pass orders of arrest and remand. Continuance of a citizen in custody without there being a mandate of law i.e. illegal custody cannot be permitted.
These being prima-facie the principled questions, which need to be decided apart from the other issues, as has been raised in the present petition and by the State, as recorded in the order dated 06.05.2023 as also mentioned by the learned Additional Advocate General, Punjab today and recorded above, as an interim measure, therefore, this Court grants interim bail to petitioners No. 2 and 3. Mr. Mritunjay Kumar son of Sh. Satish Rai and Parmender Singh Rawat son of Sh. Rajendra Singh are ordered to be released on interim bail to the satisfaction of the Judicial Magistrate/Duty Magistrate, Ludhiana.
Hearing of the case is deferred to 22.05.2023.
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2023 (5) TMI 1264 - ITAT KOLKATA
Unexplained cash credit u/s 68 - Onus to prove - directors of the subscriber companies have not come personally in response to the summons issued by the AO - HELD THAT:- Assessee in this case, explained about the identity, creditworthiness and financials etc. of each of the share subscriber company individually. However, we note that in the assessment order that the AO has not even mentioned the names of the share subscriber companies and even has not mentioned a word as to which of the share subscriber company or the corresponding transaction thereof was not genuine and on what grounds.
AO, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details received in his office and pointed out as to on what account further investigation was needed by way of recording of statement of the directors of the subscriber companies.
Even if the directors of the subscriber companies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders before the AO.
Assessee has rightly placed reliance upon the decision of Paradise Inland Shipping Pvt. Ltd [2017 (11) TMI 1554 - BOMBAY HIGH COURT] wherein held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case.
A perusal of the impugned order of the ld. CIT(A) shows that the ld. CIT(A) has not discussed anything about the material facts of the case. He has not pointed out any defect and discrepancy in the evidences and details furnished by the assessee but simply upheld the order of the Assessing Officer in mechanical manner. The order of the CIT(A) is a nonspeaking order. The same is not sustainable as per law. Decided in favour of assessee.
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