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Showing 161 to 180 of 1466 Records
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2024 (6) TMI 1306
Violation of principles of natural justice - non-speaking order - petitioners have not been given any supportive documents of notice and as such the petitioners were asked to remain present for hearing on the very same day in the afternoon - cancellation of GST registration of petitioner - HELD THAT:- This Court in the case of Aggarwal Dyeing and Printing Works [2022 (4) TMI 864 - GUJARAT HIGH COURT], the Coordinate Bench of this Court has discussed the law with regard to show cause notice as well as the importance of the principles of natural justice in great detail, and it was held that 'the sum and substance of various judgments on the principles of natural justice is to the effect that wherever an order is likely to result in civil consequences, though the statute or provision of law, by itself, does not provide for an opportunity of hearing, the requirement of opportunity of hearing has to be read into the provision.'
Keeping in mind the facts of the present case, it appears that the show cause notice, which was issued upon the petitioners dated 8th April 2022, wherein the petitioners were directed to remain present on the very same date i.e. on 8th April 2022 for the purpose of explaining the show cause notice. It is also an undisputed fact that along with the show cause notice, the petitioners were not given any material evidence which is sought to be relied upon in support of the show cause notice. In this light, if the impugned order dated 22nd April 2022 is perused, the said order is completely non-speaking and cryptic order.
The facts of the present case and the facts in the case of Aggarwal Dyeing and Printing Works are identical and similar in nature and thereby, we are unable to take any different view than the view taken by the Coordinate Bench of this Court in the case of Aggarwal Dyeing and Printing Works. Accordingly, the present petition deserves to be allowed solely on the ground of violation of principles of natural justice.
The petition is allowed.
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2024 (6) TMI 1305
Validity of Reopening of assessment - TDS u/s 192 or 194J - petitioner would submit that the petitioner is a medical professional in the field of Anesthesia - case of the Department that the petitioner has wrongly claimed to be a professional and has filed returns in ITR-3 and that the hospitals have wrongly deducted tax under Section 194J instead of Section 192 - HELD THAT:- The reasons stated in the notice issued under Section 148A(b) do not justify the conclusion that the petitioner is not a professional. Unless the Department has the document to substantiate that the petitioner is an employee in the respective hospitals, from whom the petitioner has received consideration and deductions were made wrongly under Section 194J instead of 192, the Department cannot re-open the assessment. The petitioner being an Anesthesiologist is consulting in several hospitals and thus, has received remuneration for the services rendered to these hospitals, although on monthly basis. There is no justification in reopening the assessment.
Therefore, the impugned order is quashed. Consequently, the impugned notice issued under Section 148 of the Income Tax Act, 1961 is also quashed. Decided in favour of assessee.
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2024 (6) TMI 1304
Validity of order under the Black Money Act - limited relief requested for is to grant 45 days' time to obtain and provide the bank statement - petitioner was called upon to provide documents, including bank statements relating to the petitioner's account with DBS Bank and the said bank account was closed a along time ago - HELD THAT:- The relief requested for by the petitioner is limited to granting 45 days' time to provide all documents called for by the first respondent. Such request is made by stating that the petitioner's son has travelled to Singapore to obtain the statement from the DBS Bank and that this process is taking up time because the bank account was closed a long time ago. The reason set out by the petitioner appears to be reasonable.
WP disposed by directing the first respondent to consider and grant the request for 45 days' time to provide all documents and information requested for by the first respondent.
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2024 (6) TMI 1303
Validity of assessment order passed without providing opportunity of personal hearing - violation of principle of natural justice - transfer of case from National Faceless Assessment Center to that of jurisdictional AO under section 144B (8) - request of the petitioner to grant personal hearing was rejected by the respondent No. 1 as there was no functionality to conduct hearing through video conference.
HELD THAT:- The contentions raised on behalf of the respondent that there is no functionality to conduct hearing through video conference cannot be accepted because as per the provisions of the section 144B of the Act as well as circular dated 06.09.2021 issued by the CBDT, the respondent-Assessing Officer is required to give personal hearing through video conference and if the facility is not available then the personal hearing is to be conducted in a designated area in Income Tax Office and the hearing proceedings are to be record.
As per Circular No. 06.09.2021 respondent Assessing Officer was required to give personal hearing to the petitioner and if it is not technically possible through video conference, then the personal hearing ought to have been conducted in a designated area of the Income Tax office. Therefore, the contention of the respondent which is stated on oath is contrary to the circular issued by the CBDT.
The contention raised on behalf of the respondent that the petitioner has alternative efficacious remedy to file appeal before the CIT (Appeal) the petition may not be entertained is also not tenable in view of the fact that there is a breach of principle of natural justice by not providing opportunity of hearing to the petitioner though required as per the provisions of section 144B read with circular issued by the CBDT dated 06.09.2021 which is binding upon respondent-Assessing Officer in view of the settled legal position Hon’ble Supreme Court in case of Whirlpool Trade Marks, Mumbai And Others [1998 (10) TMI 510 - SUPREME COURT]
Similarly, the contention raised on behalf of the petitioner that the jurisdictional officer has passed the impugned order without jurisdiction is also not tenable in view of the notings made in the order sheet in view of the fact that the assessment proceedings were conducted pursuant to the order passed under section 263 and therefore, the same is required to be conducted by jurisdictional Assessing Officer.
Petition partly allowed and impugned assessment order is hereby quashed and set aside. The matter is remanded back to the respondent No. 1 Assessing Officer to give opportunity of hearing to the petitioner either through video conference or through personal hearing in the designated area of the income tax office as per the para 2B of the Circular dated 06.09.2021 issued by the CBDT.
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2024 (6) TMI 1302
Validity of reopening of assessment - notice u/s 148 for re-opening on the basis that the excess funds do not form part of “approved refund” and hence is not exempt from taxation - as per the order passed under Rule 3 of Part B of Schedule IV of the Act dated 31.3.2014, the approval of the fund was only withdrawn with effect from the date of passing of the said order i.e. 31.3.2014.
HELD THAT:- Considering Rule 3 of Part B of Schedule IV of the Act, the Tribunal has taken note of order dated 31.3.2014 passed by the Commissioner for withdrawal of approval to hold that there was no question of any withdrawal of approval in absence of communication in writing by the Commissioner to the respondent-assessee.
Tribunal has held that such withdrawal of approval shall take effect from the date on which such order has been passed. Therefore, presumption on which the notice was issued that the fund stands withdrawn is not tenable as the withdrawal of approval as per clause 6(a) of the Trust Deed from 10.4.2014 would not be applicable in the facts of this case. The tribunal has therefore, rightly held that on the date of notice dated 24.3.2014 for reopening of assessment, there was excess fund of Rs. 4.12 crores and the approval was granted under Rule 2 of Part B of Schedule IV of the Act as per clause 6 (a) of the Trust Deed was in operation.
In view of the finding arrived at by the Tribunal coupled with Sub Rule 3, Rule 2 Part B of Schedule IV of the Act and in absence of any communication of withdrawal of approval by the Commissioner at the time of issuance of notice dated 24.3.2014 for reopening under Section 148 of the Act, the Tribunal was justified to set aside the notice for reopening of assessment and consequently reassessment order was also rightly set aside.
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2024 (6) TMI 1301
Validity of Revision u/s 263 - whole cash deposit which remained unexplained should have been added u/s 68 and charged by applying tax rate u/s 115BBE - ITAT allowed the appeal of the assessee by accepting the case of the assessee that the seized cash was already added in the hands of the Director of assessee in assessment order for AY 2014-2015 passed u/s 143 (3)
HELD THAT:- As apparent that the amount of Rs. 15.50 lakhs was seized from the residence of the Director of respondent assessee company and addition was also made in hands of the Director in his individual capacity and tax was also paid by the Director.
Tribunal has considered this aspect while allowing the appeal of the assessee challenging the order u/s 263 of the Act. It also appears from the record that the contention of the assessee company that amount of Rs. 15.50 lakh belonged to it was not accepted by the Income Tax department and therefore, the entry passed by the assessee company in the books of accounts reducing the cash balance was reversed because of the assessment order passed in the case of the Director.
Tribunal therefore, was justified in holding that order the passed by the AO was not at all prejudicial to the interest of Revenue as the amount of Rs. 15.50 lakhs was already taxed in the hands of individual Director.
We are of the opinion that there is no error in dismissing Misc. Application filed by the Revenue in absence of any mistake apparent in the appellate order passed by the Tribunal so as to invoke the provisions of section 254 (2) of the Act.
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2024 (6) TMI 1300
Addition u/s 68 - Unexplained cash deposit in bank account - assessee did not have sufficient cash balance and there was no conclusive proof as to how such huge amount came into the possession of the assessee in the form of cash - CIT(Appeals) deleted such additions on the grounds that confirmations were signed by authorised signatory, as person who advanced loan was in custody at the time of assessment proceedings and such loan from directors and promoters of the group with their PAN number, details of assessment etc. were with AO himself and such loan was accepted through cheques and in earlier years such parties had also given loan to the assessee also upheld by ITAT - HELD THAT:- In view of above concurrent findings of fact arrived at by CIT(Appeals) and Tribunal, this appeal stands dismissed as no question of law much-less any substantial question of law arises from the impugned order passed by the Tribunal. Decided in favour of assessee.
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2024 (6) TMI 1299
Validity of assessment - providing shorter period[one day] to reply to SCN - violation of principles of natural justice - HELD THAT:- As show cause notice provided one day's time for the petitioner to reply, this was clearly not reasonable.
Amount received in the South Indian Bank - A statement from the South Indian Bank to the effect that the amount received in the bank account was Rs. 42,92,330/- and not Rs. 85,84,660/- was submitted by the petitioner as an attachment to the reply dated 17.03.2024.
Therefore, the impugned order is set aside and the matter is remanded for reconsideration.
On perusal of the impugned assessment order, find no consideration of these contentions or documents. For these reasons, the impugned order is not sustainable - Assessee appeal allowed.
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2024 (6) TMI 1298
Validity of Reassessment order passed - violation of principles of natural justice as petitioner's reply and documents attached thereto not examined - HELD THAT:- On the basis that the petitioner's reply and documents attached thereto could not be extracted and examined, the order was issued. In the factual context of the petitioner having submitted a reply along with relevant documents, the non-consideration thereof violates principles of natural justice. Hence, the impugned assessment order is unsustainable.
Therefore, the impugned assessment order is set aside and the matter is remanded for reconsideration from the stage of reply to the show cause notice cum draft assessment order. The respondents are directed to take necessary measures to enable the petitioner to upload the reply on the portal along with the relevant attachments. The petitioner is directed to upload the reply within two weeks from the date of receipt of a copy of this order. Upon receipt thereof, the second respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing through video conference, and thereafter issue a fresh order within three months from the date of receipt of the petitioner's reply.
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2024 (6) TMI 1297
Assessment order passed ignoring request to extension of time to reply to SCN - proposal for adding all credits in the bank statement - HELD THAT:- On perusal of show cause notice it is evident that such notice deals with aggregate credit entries in the petitioner's bank statement and the proposal to treat this aggregate sum as unexplained money u/s 69A r/w 115BBE of the Income Tax Act.
On perusal of earlier notices under Sections 143(2) and 142(1), this issue was not raised in such notices. In these circumstances, it was necessary to provide a reasonable time to the petitioner to respond to the show cause notice. The show cause notice granted three days originally and this time limit was extended by a further three days. Since sufficient time was not given to the petitioner to respond meaningfully to the show cause notice, the impugned assessment order calls for interference.
The impugned assessment order dated 23.03.2023 is set aside and the matter is remanded for reconsideration. The petitioner shall reply to the show cause notice within a maximum period of two weeks from the date of receipt of a copy of this order by enclosing all relevant documents.
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2024 (6) TMI 1296
Maintainability of the review petition on the basis of a subsequent judgment - condonation of delay of 619 days for Civil Review petition - appellant states that the delay in filing of the present appeal is attributable to the Counsel. The appellant states that being wholly unaware of the judgment and order passed by this Hon'ble Court it could not take necessary steps in the matter
Entitlement for Exemption under Section 80-P(2)(a)(i) and Taxability of Transfer Charges Received - whether the Samiti was entitled for exemption u/s 80-P(2)(a)(i) on the interest received by it. and whether the transfer charge received by it is not taxable income - Samiti submits that in “Income Tax Officer, Mumbai v. Venkatesh Premises Cooperative Society Ltd.” [2018 (3) TMI 675 - SUPREME COURT] as laid down the law on the subject and it has been held that the transfer charges payable by the outgoing member does not partake the nature of profit or commerciality as the amount is appropriated only after the transferee is inducted as the member and in view of the law laid down in “Venkatesh Premises Cooperative Society Ltd.” needs a relook and, accordingly, modified/reviewed.
HELD THAT:- Explanation to Rule (1) to Order 47 of the Code of Civil Procedure provides that a decision on a question of law on which the judgment of the Court is based if reversed or modified by the subsequent decision of the Superior Court in any other case that shall not form a ground for review of such judgment. The judgment in “Venkatesh Premises Cooperative Society Ltd.” was rendered on 12th March 2018 but before that [2018 (2) TMI 2117 - JHARKHAND HIGH COURT] was dismissed by order.
Samiti has brought to our notice a decision in “Govt. of NCT of Delhi through the Secretary, Land and building Department and Another v. M/s K. L. Rathi Steels Limited and Others” [2023 (3) TMI 1503 - SUPREME COURT] to support maintainability of this review petition on the basis of a subsequent judgment. However, the decision in “M/s K. L. Rathi Steels Limited” is a split verdict of the Hon’ble Supreme Court and a final decision thereon is awaited. In the opinion of this Court, if a review petition is entertained ignoring the statutory provisions under Order 47 of the Code of Civil Procedure which are applied in the writ proceedings, that would bring uncertainty and chaos in the system.
For the foregoing reasons appeal filed for condonation of delay of 619 days in filing the present Civil Review petition is dismissed.
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2024 (6) TMI 1295
Intimation u/s. 143(1) denying benefits of Section 11 - It was the submission that the assessee had filed rectification application u/s. 154 and the same came to be rejected and on further appeal the ld. CIT(A) without considering the claim of the assessee, has upheld the order u/s. 154 - When questioned what happened to the intimation issued u/s. 143(1), it was the submission that the assessee had filed rectification application u/s. 154 of the Act and the same came to be rejected and on further appeal the ld. CIT(A) without considering the claim of the assessee, has upheld the order u/s. 154
HELD THAT:- At the outset, ld. AR has sought liberty to withdraw this appeal and also prayed for liberty to file appeal against the intimation u/s. 143(1) of the Act. Thus, the appeal filed by the assessee against the order passed u/s. 154 of the Act stands dismissed as withdrawn and liberty is granted to the assessee to file necessary appeal against the intimation u/s. 143(1) of the Act before the appropriate forum. Appeal of the assessee is dismissed as withdrawn.
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2024 (6) TMI 1294
Unexplained credits u/s 68 - assessee was asked to establish the identity, creditworthiness of Shri Singla and genuineness of the transactions, the same was failed to establish by producing cogent documentary evidence - HELD THAT:- Since the assessee failed to submit the required documents being copy of the ITR, Bank Statement and confirmation of Shri Singla, the addition was confirmed by First Appellate Authority which is found to be just and proper so as to warrant interference particularly in the absence of any assistance rendered by the assessee before us. The order passed by the CIT(A) is confirmed.
Addition u/s 56(2)(vii)(c) - difference in fair market value and actual consideration paid by the assessee for purchase of shares - HELD THAT:- As the assessee allotted 125000 shares of J.B. Rolling Mills @Rs.40/- per share on 31.03.2017, the fair market value of such shares comes at Rs. 48.60/- per share in terms of the provision of Section 56(2)(vii)(c) read with Section 11UA of the Act. Therefore, the difference in fair market value and the actual consideration paid for purchase of shares has been rightly added by the Learned AO and so confirmed by the First Appellate Authority which is found to be just and proper so as to warrant interference - Decided against assessee.
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2024 (6) TMI 1293
Validity of assessment proceedings u/s 153A - Sec 153D approval process not followed by the AO - HELD THAT:- Considered the rival submissions and material placed on record, we observed that the approval granted by DCIT, Central Circle, Noida dated 30/12/2016 in which the approval granted u/s 153 were granted to the eighteen assessees including the case of the assessee. Letter granting of such approval is placed on record. In the case of M.G. Metolloy Pvt. Ltd [2023 (10) TMI 686 - ITAT DELHI], is one of the assessee, who was also granted approval by the same letter dated 30/12/2016 sanctioning authority (JCIT) has, in fact, under the force of circumstances, relegated his statutory duty to the subordinate AO, whose action the JCIT, was supposed to supervise as per the scheme of the Act. Manifestly, the JCIT, without any consideration of factual and legal position in proposed additions/disallowances and without contents of appraisal report before him or incriminating material collected in search etc. has buckled under statutory compulsion and proceeded to grant a simplicitor approval with caveats and disclaimers. This approach of the JCIT has ipso facto rendered the impugned approval to be a mere ritual or an empty formality to meet the statutory requirement and cannot thus be countenanced in law.
The identical issue has been favourably adjudicated in assessee's own case in ITA 3306/Del./2018 order dated 23-08-2021 concerning other AY 2015-16 where co-ordinate bench found total lack of propriety in such statutory approval - We are unhesitatingly disposed to hold that the assessment order for AY 2014-15 in question, in pursuance of a hollow & cosmetic approval accorded u/s 153D and undeniably without application of mind, is rendered unenforceable in law and hence quashed. - Decided in favour of assessee.
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2024 (6) TMI 1292
Denial of exemption u/s 11 - assessee being registered u/s 12A - HELD THAT:- The proviso to section 12A(2) was introduced to remove hardship caused to the genuine trust. In this case, assessee is a Charitable Trust. It has not been alleged by Revenue that assessee’s activities/objects are not charitable in nature, rather it is an admitted fact that assessee’s objects and activities are charitable in nature.
CIT(E) after examining the objects and activities of the Trust, granted registration u/sec. 12AA of the Act to the assessee trust. The impugned order u/sec. 143(1) was issued on 02.01.2018 and registration u/s. 12AA of the Act was granted 20.10.2016, means at the time of issue of order u/s. 143(1), assessee was already having registration u/s. 12AA of the Act. We have already mentioned that proviso to section 12A(2) was introduced to remove hardship to the genuine trust. Therefore, as per proviso to section 12A(2) of the Act, assessee was eligible for deduction u/sec. 11 of the Act for A.Y. 2016-17.
As relying on Shree Shyam Mandir Committee [2017 (10) TMI 1450 - RAJASTHAN HIGH COURT] Assessee is eligible for deduction u/sec. 11 of the Act for A.Y. 2016-17 as assessee had received registration u/sec. 12AA of the Act before the order u/sec. 143(1) for A.Y. 2016-17 was passed by Income Tax Central Processing Centre, Bangalore. Accordingly, grounds of appeal raised by the assessee are allowed.
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2024 (6) TMI 1291
Disallowance u/s. 14A - As argued assessee has not earned exempt income during the relevant previous year under consideration - As per CIT(A) as there is no exempt income earned in the present Assessment Year, disallowance made u/s 14A is not sustainable - HELD THAT:- We have noticed that the above findings of the Ld. CIT(A) is apt and accurate and legally sustainable as being duly supported by settled principles of law by the Hon'ble High Court and Hon'ble Supreme Court and we find no illegality and perversity in the same.
Regarding the reliance by the Ld. AO on the case of Hon'ble Supreme Court in M/s. Maxopp Investment Ltd. [2018 (3) TMI 805 - SUPREME COURT] we have noticed that the appellant has unequivocally asserted that they have made the investment from their own funds raised by the issuing of Optional Convertible Debentures (considered entirely equity in nature) and subscribed by holding company. Further, the assessee has unequivocally asserted that they have not debited any interest expenses or similar expenses incurred to any income from investment made by the appellant. Nothing contrary has been brought on record by the revenue/appellant which may controvert the said assertions of the assessee in this case. Therefore, the facts of case of the assessee are distinguishable from the facts of case of M/s. Maxopp Investment Ltd. referred (supra).
Addition of book profit u/s 115JB on addition u/s 14A - The finding of the Hon'ble jurisdictional High Court in M/s. Bengal Finance Investment Pvt. Ltd. case [2015 (2) TMI 1263 - BOMBAY HIGH COURT] the amount of disallowance u/s. 14A of "the Act" cannot be added for arriving at book profit for the purpose of Section 115JB of "the Act" confirmed. We are of the considered view that there is no illegality in the impugned order passed by the Ld. CIT(A) wherein the order of the Ld. AO was set aside and disallowances made by the Ld. AO were deleted.
Assessee appeal allowed.
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2024 (6) TMI 1290
Unexplained cash deposits - applicability of section 115BBE - assessee and her husband deposited during demonetization in assessee’s individual account and in their joint accounts - as stated assessee and her husband are farmers and they had only agricultural income during the year under consideration - HELD THAT:- We find that the Ld. CIT(A) has not considered the opening cash balance as on 01.01.2016. AR has stated that the cash receipt from October, 2013 to December, 2015 was of Rs. 38,18,461/-. From the above, the assessee has reduced the cash deposits of Rs. 4,50,000/-; agricultural expenditure, being 40% of the agricultural income, for the period October, 2013 to December, 2015; and household expenses of Rs. 6,75,000/- @ Rs. 25,000/- per month for 27 months. The assessee has given details of the total cash withdrawal and cash agricultural income.
We find that apart from living expense of Rs. 25,000/- per month, the assessee has not shown any expense such as medical expenses, expenses for various social and family functions, educational expenses, travelling expenses and other miscellaneous expenses. Therefore, the expenses shown by the assessee at Rs. 25,000/- per month is on the lower side and in our view Rs. 50,000/- would be the reasonable monthly expense. Therefore, the personal expenses for the 27 months would be Rs. 13,50,000/- instead of Rs. 6,75,000/- claimed by the assessee. If such expenses are considered, the cash available as on 01.01.2016 would be Rs. 6,06,061/-. Therefore, the assessee has been able to explain only Rs. 6,06,061/- as against the claim of opening balance of Rs. 12,80,000/-. Therefore, addition to the extent of Rs. 6,73,939/- is sustained and balance is deleted. Hence, ground no.1 is raised by the assesse is partly allowed.
Application of provisions of section 115BBE of the Act on the impugned addition -As provisions of section 115BBE of the Act was enacted on 15.12.2016 and hence cannot be applied for the year under consideration - As decided in Samir Shantilal Mehta [2023 (5) TMI 1279 - ITAT SURAT] 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 - Thus, provisions of section 115BBE are not applicable to the present case - Decided in favour of assessee.
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2024 (6) TMI 1289
LTCG Computation - denial of cost of improvement - As per AO no prudent person would wait for more than three years when there is no reference of such improvement in the sale deed. Further, the payment has been made only after the issue of show cause notice - HELD THAT:- We find the identical addition was made by the AO in the hands of spouse of the assessee i.e. another co-owner [2023 (6) TMI 1397 - ITAT PUNE]. We find the Ld. CIT(A) / NFAC deleted the said addition and although the Revenue has filed an appeal against the order of CIT(A) / NFAC challenging the deduction u/s 54 / 54F of the Act, however, no such ground was raised by the Revenue on the issue of cost of improvement in the hands of the spouse of the assessee.
Once the Revenue has accepted the cost of improvement in the hands of the spouse of the assessee being the co-owner to the extent of her share, we find no reason as to how and why the Revenue is aggrieved against the order of CIT(A) / NFAC on this issue. Further, we find the CIT(A) / NFAC has given justifiable reasons while deleting the cost of improvement and the Ld. DR could not rebut the findings of the Ld CIT(A) / NFAC by producing any contrary material. In this view of the matter and in view of the detailed reasoning given, the order of CIT(A) / NFAC deleting the cost of improvement in the hands of the assessee is upheld and the grounds raised by the Revenue on this issue are dismissed.
Denial of deduction u/s 54 - addition on the ground that the assessee failed to comply with the conditions stipulated in section 54 i.e. he has not completed the construction within three years from the date of transfer of original asset on or before 26.07.2019 - We find the CIT(A) / NFAC in the present case has given a finding that the assessee sold an old asset and realized the consideration and applied the same for acquiring the new asset which is in the nature of residential house, which is evident from the purchase deed filed by the assessee. He has given a finding that the assessee has satisfied all the conditions as stipulated u/s 54 of the Act. Further, we find in the case of spouse of the assessee the claim of deduction u/s 54 of the Act was denied by the Assessing Officer and in appeal the CIT(A) / NFAC allowed the claim of the assessee.
Decided against revenue.
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2024 (6) TMI 1288
Addition towards prior period expenses - HELD THAT:- It has been consistently held in favour of the assessee by the ITAT, Visakhapatnam Bench for the earlier years in the assessee’s own case [2011 (2) TMI 1536 - ITAT VISAKHAPATNAM] for the AY 2002-03 in the assessee’s own case as held wherein AO has accepted the prior period income in this year but disallowed the prior period expenditure. This action of the assessing officer is not proper as he has to take into the account the status as a whole and not to make a pick and choose. We however, carefully examined the order of the Ld. CIT(A) and we find that the Ld. CIT(A) has adjudicated the issue in the light of judgment of the Delhi High Court in the case of Additional CIT vs. Jay Engineering Works Limited [1978 (2) TMI 94 - DELHI HIGH COURT]
TDS u/s 194I - Disallowance u/s. 40(a)(ia) - demurrage charges - AR submitted that these expenditures are in the nature of payment made to shipping companies in foreign currency - HELD THAT:- From the submissions of the Ld. AR, we find that the payment are made to foreign shipping companies as demonstrated by the Ld. AR through the documents which are available. These are in the nature of detention charges paid to foreign shipping companies and therefore the Board Circular No. 723, dated 19/9/1995 is applicable. We therefore are of the view that invoking the provisions of section 194I in the case of the assessee is not valid in law and thereby we reject the grounds No. 4 & 5 raised by the Revenue on this issue.
Denial of TDS credit - claim denied to the assessee since it is not reflecting in Form-26AS of the assessee for the impugned assessment year - HELD THAT:- As the Circular No 5/2013 wherein it was clearly clarified by the CBDT to allow and grant credit for TDS based on the original Form-16A submitted by the assessee even though it is not reflected in the Form-26AS. This instruction was issued by the CBDT to eliminate the hardships faced by the assessee in the initial assessment years during the implementation of Form-26AS. Therefore, we are inclined to remit the matter to the file of the Ld. AO and direct the assessee to produce the original Form-16A before the Ld. AO for verification. The Ld. AO is directed to verify the genuineness of the credit for TDS and thereby grant credit if it is found to be correct. Accordingly, Ground No.2 raised by the assessee is allowed for statistical purposes.
Charging of interest u/s. 234C - HELD THAT:- From the submissions made by the Ld. AR we find that the Department of Defence Produce has granted a financial restructuring package to the assessee on 23/03/2011. The assessee has also failed to seek exemption from the waiver of interest with the appropriate authorities within the time limit specified. In the facts and circumstances of the case, we are of the view that there is no provision in the Act to grant waiver from levy of interest u/s. 234C of the Act. We therefore find no infirmity in the order of the Ld. CIT(A)-NFAC thereby dismiss this ground raised by the assessee.
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2024 (6) TMI 1287
Deduction u/s 80P(2)(d) denied in adjustment u/s 143(1) - assessee has earned interest income from Maharashtra State cooperative bank Ltd which is a scheduled bank - whether such an adjustment can be made under the provisions of section 143 (1) of the act or not? - HELD THAT:- In this case return is not filed beyond the due date prescribed under the provisions of section 139 of the act and therefore the disallowance of deduction claimed under chapter VIA for that reason cannot be made. It is also not the case of AO that it is an ‘incorrect claim’ made by the assessee as per explanation (a) of that section. Therefore, the disallowance of deduction under section 80P(2)(d) of the act is not permitted adjustment under the provisions of section 143 (1) of the act - Such adjustment made is beyond the powers and therefore such an intimation deserves to be quashed and hence quashed.
Deduction u/s 80P - Assessee is entitled to deduction u/s 80P(2)(d) for the reason that assessee has placed the sum with the Maharashtra State cooperative bank which is also cooperative society as per Maharashtra cooperative societies act. Therefore, in terms of the provisions of section 80(P)(2)(d) read with the provisions of section 2(19) of the income tax act where the definition of cooperative societies is provided and further reading the same with respect to the Maharashtra cooperative societies act, it is apparently clear that the cooperative banks are also the cooperative societies under that act. Assessee is eligible for a deduction earned by the assessee cooperative society from the investment made in another cooperative society i.e., Maharashtra state cooperative Bank Limited u/s 80P(2)(d)
Supreme Court in case of Citizen cooperative society Ltd [2017 (8) TMI 536 - SUPREME COURT] has categorically held that the section 80P of the act is a benevolent provision, which was enacted by the Parliament in order to encourage and promote the growth of the cooperative sector generally in the economic life of the country and must therefore, berated liberally and in favour of the assessee. Even otherwise if the strict interpretation of the law is made, the assessee is entitled to the deduction under section 80P(2)(d) of the act with respect to the interest earned by the assessee on its investment with other cooperative banks who are in fact cooperative societies as per the Maharashtra State cooperative societies act.
Accordingly, CIT – A is not correct in not allowing the assessee deduction under section 80P(2)(d) of the act on such interest income. Hence the order of the learned CIT – A reversed, and the learned assessing officer is directed to grant the deduction u/s 80 (P) (2) (d) - Decided in favour of assessee.
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