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Showing 81 to 100 of 1466 Records
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2024 (6) TMI 1386
Deduction u/s 80P(2)(a)(i) - claim denied as that assessee was dealing with nominal / associate members who are not regular members of assessee society and has violated the principles of mutuality - HELD THAT:- In respect of associate / nominal members, the Hon’ble Supreme Court in the case of Mavilayi Service Co-operative Bank Ltd., & Ors. [2021 (1) TMI 488 - SUPREME COURT] had held that the expression “members” is not defined under the Income Tax Act, 1961. Hence, it is necessary to construe the expression “members” in section 80P(2)(a)(i) of the Act light of the definition of the expression as contained in the concerned Co-operative Societies Act under which the assessee is constituted.
Both the AO and the CIT(A) has not considered the latest judgment of Mavilayi Service Co-operative Bank Ltd., & Ors. Vs. CIT (supra) in correct perspective. Even assuming that assessee is dealing with non-members, only to such extent there shall be a denial of deduction u/s 80P(2)(a)(i) of the Act.
We deem it appropriate to restore the matter to the AO. AO is directed to examine whether assessee has been dealing with non-members, and if so, only to that extent there shall be denial of deduction under section 80P(2)(a)(i) of the Act. Assessee would be entitled to proportionate deduction in respect of its dealing with members - ground Nos. 2 and 3 are allowed for statistical purposes.
Interest received by the Appellant from co-operative banks is not eligible for deduction u/s 80P(2)(d) - The wording of section 80P(2)(d) of the Act is very clear. If the assessee co-operative society is in receipt of interest from investments with another co-operative society, the same is eligible for deduction under section 80P(2)(d) of the Act. It is a claim of the assessee that the entire interest receipts received from scheduled bank, central co-operative bank and co-operative societies has been aggregated by the AO and has denied the benefit the deduction under section 80P - Section 80P(2)(d) of the Act, the issue raised in ground No. 4 needs to be re-examined by the AO. The assessee is directed to furnish the bifurcation of the interest receipts and necessary details before the AO. The AO shall examine the claim of the assessee and shall grant deduction under section 80P(2)(d) of the Act in respect of interest income received from co-operative societies
Disallowance of deduction u/s 80P(2)(d) on interest income earned from other co-operative banks, as the definition co-operative society includes co-operative banks as well - The Hon’ble Apex Court in the case of Kerala State Co-Operative Agricultural & Rural Development Bank Ltd. [2023 (9) TMI 761 - SUPREME COURT] had held that although the assessee society in that case is an apex co-operative society within the meaning of State Act, 1985, it is not a cooperative bank within the meaning of section 5(b) r.w.s. 56 of the RBI Act, 1949. It was concluded by the Hon’ble Apex Court that if a co-operative bank does not have a banking licence under the RBI Act, the said co-operative bank would be entitled to deduction under section 80P of the Act - certain categories of co-operative banks which does not have RBI licence to do a banking business would in essence be a co-operative society. Hence, any interest income received from such co-operative banks should also be entitled to deduction under section 80P(2)(d) of the Act. Therefore, with the aforesaid observation, the matter is restored to the files of the AO.
Eligibility to claim deduction in respect of interest earned on compulsory deposit with co-operative banks which is a statutory requirement after deduction u/s 80P(2)(d) of the Act is disallowed - As relying on M/S. KACHUR CREDIT CO-OPERATIVE SOCIETY LTD. [2023 (9) TMI 1487 - ITAT BANGALORE] we direct the AO to examine whether the interest income received on investments with central co-operative banks is out of compulsion compulsions under the Karnataka Co-operative Societies Act, 1959, and the relevant Rules. If so, the same may be considered as “business income” and entitled to deduction under section 80P(2)(a)(i) - Therefore, if the investments are out of compulsions under the relevant Rules, necessarily it forms part of assessee’s business which would entail the benefit of deduction under section 80P(2)(a)(i) of the Act. For the aforesaid examination of the matter, the issue raised in ground No. 6 is restored to the files of the AO.
Even interest earned on deposits with cooperative banks is taxed u/s 56 of the Act under 'income from other sources', the Appellant must be eligible to claim deduction u/s 57(iii) of the Act in respect of cost of funds and proportionate administrative and other expenses - We find that this contention of the assessee is covered by the Order of M/s. Deepa Credit Co-operative Society Ltd. [2023 (12) TMI 1326 - ITAT BANGALORE] as followed the dictum laid down in the case of Totgars Co-operative Sale Society Ltd., [2015 (4) TMI 829 - KARNATAKA HIGH COURT] wherein restored the matter to the AO. The AO is directed to calculate the cost of funds for earning the interest income which has to be assessed under section 56 of the Act and allow the same as deduction under section 57 - thus we restore the matter to the AO. The AO is directed to follow the dictum laid down in the judicial pronouncement cited supra and take a decision in accordance with law - ground No. 7 is allowed for statistical purposes.
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2024 (6) TMI 1385
Provisional attachment order u/s 83 of CGST Act, 2017 - violation of the provisions of Section 159 of the CGST Rules, 2017 - HELD THAT:- The present writ petition is disposed of with liberty to the petitioner to file objections to order dated 08.03.2024 with expedition, say within next two weeks. While filing objections it shall be open for the petitioner to take all the grounds including the ground of jurisdiction.
The petition is disposed off.
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2024 (6) TMI 1384
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - inadvertent error was committed while filing the GSTR 3B returns for September 2018 - HELD THAT:- On perusal of the impugned order, it is evident that tax liability was imposed with regard to reverse charge liability. The petitioner has asserted that tax liability arose on account of an inadvertent error while filing the GSTR 3B return for the month of September 2018. Such return has been placed on record. Prima facie, it appears that there is merit in the contention of the petitioner. In these circumstances, the interest of justice warrants reconsideration subject to the petitioner being put on terms.
The impugned order dated 18.01.2024 is set aside subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (6) TMI 1383
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - SCN and other communications were uploaded in the “View Additional Notices and Orders” tab on the GST portal and not communicated to the petitioner through any other mode - mismatch between the petitioner's GSTR 3B return and the auto-populated GSTR 2A - HELD THAT:- The tax proposal related to a mismatch between the petitioner's GSTR 3B return and the auto-populated GSTR 2A in so far as Input Tax Credit (ITC) is concerned. Such tax proposal was confirmed on the ground that the petitioner did not reply to the show cause notice or attend the personal hearing. By taking into account the assertion that such non participation was on account of being unaware of proceedings, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits. The petitioner has placed on record evidence that sums of Rs. 2,25,106/- and Rs. 4,76,974/- were appropriated from the petitioner's bank account after the impugned order was issued. Since these amounts constitute more than 50% of the disputed tax demand, the revenue interest is protected to that extent.
The impugned order dated 26.08.2023 is set aside. The petitioner is permitted to submit a reply to the show cause notice within 15 days from the date of receipt of a copy of this order. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within a period of three months from the date of receipt of the petitioner's reply.
The petition is disposed off.
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2024 (6) TMI 1382
Validity of assessment order - failure to report correct tax liability while filing the annual returns in Form GSTR 9 - HELD THAT:- The petitioner has placed on record show cause notice dated 28.12.2023 and the reply dated 16.04.2024. By such reply, the petitioner asserts that both the GSTR 3B and 9 returns contained clerical errors. This reply was taken into consideration in the impugned order while confirming the tax proposal. In these circumstances, it cannot be said that principles of natural justice were violated. Consequently, discretionary jurisdiction not exercised.
Petition disposed off.
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2024 (6) TMI 1381
Challenge to assessment order - reversal of Input Tax Credit in respect of credit notes issued by the supplier - HELD THAT:- Sub-section (3) of Section 15 of applicable GST statutes provides for a reduction in the value of supply, on account of a discount, if such discount has been duly recorded in the invoice issued in respect of such supply or if such discount is established in terms of an agreement entered into either before or at the time of supply although the supply may be subsequent to such agreement. In this case, the petitioner has prima facie established that neither of the requirements under sub-section (3) were satisfied. In such event, the supplier would be liable to pay tax on the full value of supply.
The exercise of jurisdiction under Article 226 is discretionary and subject to self imposed fetters. One such fetter is when an efficacious alternative remedy is available. It should be borne in mind that the existence of an alternative remedy is a material consideration but not a bar to the exercise of jurisdiction. In the case at hand, on the basis that the other issues require reappraisal of evidence, the petitioner has approached the appellate authority in respect thereof - notwithstanding the fact that the petitioner had approached the appellate authority in respect of other issues, the jurisdiction is exercised. It is needless to say that a writ petition would not ordinarily be entertained once the person aggrieved has chosen to challenge other issues in an order before an appellate authority.
The impugned order dated 12.03.2024 is set aside only insofar as defect no.3 relating to reversal of Input Tax Credit for the value of credit notes issued by the supplier is concerned - petition disposed off.
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2024 (6) TMI 1380
Challenge to assessment orders - petitioner were unaware of the notices that were posted in the GST common portal - HELD THAT:- This Court is of the view that the petitioners may have a case on merits and therefore, discretion is exercised in favour of the petitioners and quashed the impugned order, subject to the respective petitioners depositing 10% of disputed tax to the credit of the respective respondents from their Electronic Cash Register within a period of 30 days from the date of receipt of this order.
The impugned orders, which stand quashed, shall be treated as addendum to the show cause notices that preceded the impugned orders.
The petition is disposed off.
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2024 (6) TMI 1379
Cancellation of GST registration of petitioner - petitioner could not file returns in time on account of ill-health - HELD THAT:- The petitioner is directed to file returns for the period prior to the cancellation of registration, if not filed, together with tax dues along with interest thereon and the fee fixed for belated filing of returns within a period of forty five (45) days from the date of receipt of a copy of this order.
Petition disposed off.
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2024 (6) TMI 1378
Validity of assessment order - challenge on the ground that it is unreasoned - HELD THAT:- On perusal of the impugned order, it is evident that the tax payer's reply was extracted and, thereafter, without assigning any reasons, the tax proposal was confirmed. In the absence of reasons in support thereof, the impugned order cannot be sustained.
The impugned order dated 18.03.2024 is set aside and the matter is remanded for reconsideration. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within three months from the date of receipt of a copy of this order.
In view of the assessment order being set aside, the bank attachment is raised. - Petition disposed off by way of remand.
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2024 (6) TMI 1377
Availing irregular ITC - misuse of GST number and credentials by some third party - challenge to demand against petitioner - HELD THAT:- Issue notice. Notice is accepted by learned counsel appearing for the respondents, who prays for time to take instructions.
Respondents shall file an affidavit - Respondents shall also indicate as to what action was taken by the Proper Officer on the compliant made by the petitioner in October, 2019 - Respondent No. 4 shall also file an affidavit indicating the steps taken shall on the complaint made by the petitioner to the SHO, Police Station, Krishna Nagar on 05.10.2019 vide DD No. 42D and to the Deputy Commissioner of Police, Shahdara District, Delhi and delivered on 07.10.2019.
List on 19.07.2024.
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2024 (6) TMI 1376
Maintainability of petition - time limitation - petitioner has approached this Court after the lapse of limitation for filing the appeal under Section 107 of the respective GST enactments - HELD THAT:- Having considered the submissions made by the learned counsel for the petitioner and the learned Additional Government Pleader for the respondent, The Appellate Deputy Commissioner (GST) Madurai, camp at Tirunelveli is suo motu impleaded by this Court as second respondent in this writ petition and this Court is inclined to dispose of this writ petition at the time of admission by condoning the delay in filing the appeal before the second respondent.
The Writ Petition stands allowed.
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2024 (6) TMI 1375
Invocation of Extended period of limitation - demand of service tax and the relevant Cess - HELD THAT:- This Court is inclined to grant partial relief to the petitioner by directing the petitioner to deposit 25% of the disputed tax in cash within a period of 30 days from the date of receipt of a copy of this order.
Subject to above compliance, the impugned order shall stand quashed and the case is remitted back to the second respondent to pass a fresh order on merits and in accordance with law. The impugned order, which stands quashed, shall be treated as addendum to the show cause notice No.130/2020 ST dated 31.12.2020 - Petition allowed.
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2024 (6) TMI 1374
Refund of the accumulated credit in account on account of inverted tax structure under Proviso of Section 54(3) read with Rule 89(5) of the Central Goods and Service Tax Rules, 2017 - accumulation of credit on the ground that the rate of tax on the inputs are higher than the rate of tax on output supply of goods - HELD THAT:- Without entering into the merits of the matter, the impugned order passed by the appellate authority as well as order of the adjudicating authority rejecting the refund claim of the petitioner in respect of ten refund applications as enumerated in the appellate order are hereby quashed and set aside and the matter is remanded back to the adjudicating authority–respondent No. 2 for de novo consideration of refund claims made by the petitioner in accordance with law.
Petition disposed off by way of remand.
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2024 (6) TMI 1373
Reopening of assessment u/s 147 - Reason to believe - assessee involvement in penny share/stock transactions - borrowed satisfaction or independent application of mind by AO HELD THAT:- It is not in dispute that the petitioner acquired the shares of M/s. Monark Health Care Limited (New Name Looked Health Care) through initial public offer (IPO) by investing Rs. 21,60,000/- through banking transaction. The petitioner was allotted 54,000 equity shares of the said Company in IPO and the said shares were dematerilized and credited to the DEMAT Account of the petitioner.
It also emerges from the record that during the course of the regular assessment, the Assessing Officer had called for information with regard to the long term capital gain which claimed as exempt and the requisite details was provided by the petitioner along with reply dated 09.11.2016. The petitioner also submitted bills of shares sold during the year under consideration and break up of the capital gain along with the ledger account of the said company.
Thus on the basis of the information received from DDIT Investigation Unit-5(1), New Delhi, the respondent has formed a prima facie belief that there is escapement of income as the petitioner has earned substantial amount of long term capital claiming the same as exemption under section 10 (38) - However, reasons recorded do not disclose any live link or fresh material to connect the transaction entered into by the assessee with the information in possession of the Assessing Officer. Therefore, it is clear that the Assessing Officer has assumed the jurisdiction on the basis of the borrowed satisfaction without there being any live link between the information and the material on record. Decided in favour of assessee.
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2024 (6) TMI 1372
Validity of Reassessment proceedings against dead person - HELD THAT:- It would be apt to take note of decision in case of Pravinchandra A Shah [2023 (8) TMI 385 - GUJARAT HIGH COURT] wherein as after referring to various provisions of the Income Tax Act, 1961 as well as the decisions of various High Courts as well as Hon’ble Supreme Court has held that the proceedings initiated by the respondent authority against a dead person as well as the impugned orders passed by it, is nullity.
Thus the proceedings were concluded against a dead person which has no legal legs to stand. Accordingly, the present petitions are allowed.
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2024 (6) TMI 1371
Unexplained cash credit u/s 68 - income of the assessee on account of unsecured loan - tax was charged at special rates as per section 115BBE - AR pointed out that the impugned advances have been re- paid by assessee company within the financial year(mostly within 30 days).
HELD THAT:- As undisputed fact with regard to repayment of loan, at this juncture, it would be pertinent to take note of decision of this Court in case of Dy. CIT v. Rohini Builders [2001 (3) TMI 9 - GUJARAT HIGH COURT] phraseology of section 68 is clear. The Legislature has laid down that in the absence of a satisfactory explanation, the unexplained cash credit may be charged to income-tax as the income of the assessee of that previous year. In this, case the legislative mandate is not in terms of the words ‘shall be charged to income- tax as the income of the assessee of that previous year’. The Supreme Court while interpreting similar phraseology used in section 69 has held that in creating the legal fiction the phraseology employs the word ‘may’ and not ‘shall’. Thus the unsatisfactoriness of the explanation does not and need not automatically result in deeming the amount credited in the books as the income of the assessee as held by the Supreme Court in the case of CIT v. Smt. P. K. Noorjahan [1997 (1) TMI 6 - SUPREME COURT]
Thus, no merit in the appeal and therefore, same deserves to be dismissed.
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2024 (6) TMI 1370
Reopening of assessment - Disallowance of depreciation and reduced returned loss - notice issued after 4 years period - ITAT holding that reopening of assessment under section 147 is only change of opinion and hence bad in law - HELD THAT:- In the facts of the case reveals that the assessing officer reopened the assessment only on the basis of the details derived from the profit and loss account which is filed by the assessee and in absence of any tangible materials available on record and in absence of any failure on the part of assessee to disclose fully and truly all the material facts necessary for the purpose of assessment, the Tribunal has rightly relied upon the decision of Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT]- Decided in favour of assessee.
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2024 (6) TMI 1369
Rejection of settlement applications by the Settlement Commission - appellants had suppressed the income - original assessee died with only son as his legal heir left behind - On intimation of the demise of the original assessee, notices issued under section 153A were withdrawn and fresh notices were issued to the legal heir of the deceased. Upon receipt of the same, the appellants preferred the settlement applications under Section 245-C
HELD THAT:- We are not inspired by the submissions so made on behalf of the appellants. First of all, settlement applications must contain full and true disclosure of the income supported by documentary evidence. In the absence of such disclosure, the remedy by way of settlement cannot be availed. The Settlement Commission, in its orders has dealt with each and every opposition raised by the Principal Commissioner of Income Tax and the replies furnished by the appellants thereof. On going through the oppositions raised by the Principal Commissioner of Income Tax, which were narrated by the Settlement Commission extensively in its orders dated 16.11.2017, we find that there are several shortcomings in the particulars of income disclosed by the appellants in their settlement applications.
As evident from the orders of the settlement commission that the first respondent, after considering Rule 9 reports of the PCIT and the replies submitted by the appellants, rejected the settlement applications filed by the appellants, by observing that the disclosure is not full and true and that, there is deficiency in explaining the manner in which the income has been earned.
On a detailed analysis, it is also apparent that there is no disclosure of the facts in the applications or in the returns of income about the foreign bank accounts or deposits or investments and income from M/s. Universal Construction Supplies, FZE, Sharjah, UAE and flat at Dubai Marina, UAE of the original applicant late Dr.P.Anand. That apart, the business activities of the applicant and his company M/s.Anand Granite Exports Pvt Ltd. situated in Dubai, have not been mentioned in the applications or returns of income. Therefore, the settlement commission was of the view that there is concealment of facts, which require deeper investigation into the case of the applicants, particularly, with regard to the foreign accounts / assets. Though the applicant/ legal heir of the deceased/assessee, stated that he is not aware of the dealings of his father Dr.P.Anand, the same was not accepted by the settlement commission stating that he is also involved in the dealings of the original applicant, as evident from the documents received from the UAE authorities.
First respondent / settlement commission has also observed in its orders which were impugned in the writ petitions that the original applicant late Dr.P.Anand was the Managing Director of Anand Granite Exports Private Limited during the period covered in the settlement applications; that, various foreign bank accounts in Dubai, China and UK have been found, and that the enquiry in relation to these accounts is in progress. It was specifically mentioned by the settlement commission in its order relating to M/s.Anand Granite Exports Pvt. Ltd, that as per the evidence furnished by UAE authority, the applicant company obtained licence on 28.10.2013 to do trading of building and constructions materials; but the business activities of the applicant company in Dubai and any income derived therefrom were not disclosed in the settlement applications or in the returns of income filed before the Department. That apart, the names of the maistries given for verification, do not tally with that of the name given in the sworn statements, settlement applications and during the course of hearing.
In addition, the appellant failed to extend full co-operation to furnish and explain the true nature of entries / transactions with Bannari Amman Sugars Ltd. It is also pointed out in the order relating to M/s.Global Exports that the applicant has suppressed the export sales receipts for the AY 2008-09 which was admitted only at the time of final hearing after verification. Thus, it is clear that the appellants failed to disclose true and full particulars of the income earned and to explain the manner in which it was earned. In such circumstances, this Court cannot direct the Settlement Commission to entertain the settlement applications submitted by the appellants, notwithstanding the various shortcomings noticed by them.
Pointing out the specific facts and circumstances to reach the conclusion that the settlement applications do not contain true and full particulars of the income to be subjected to tax under the Income Tax Act, the learned Judge has rightly held that such a finding of fact need not be interfered with by this Court under Article 226 of the Constitution of India, unless such facts are found to be error apparent.
When there was an adjudication of facts and the Settlement Commission arrived at a finding that factually, the appellants could not establish while filing the settlement applications, then, this Court has to exercise restraint in entertaining the writ petitions as against the order of the Settlement Commission. Therefore, this court finds no reason to interfere with the order passed by the learned Judge in dismissing the writ petitions filed by the appellants.
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2024 (6) TMI 1368
Estimation of income - bogus purchases - CIT(A) reduced the addition to 12.5% - HELD THAT:- Undoubtedly, the assessee could not prove the genuineness of the purchases which are found in the information received from the DGIT Investigation. However, the purchase of ₹ 42,32,703, were shown by the assessee by a chart showing that the purchases from these parties have also gone into sales of the equal quantity. The assessee has also got his account tax audited where the quantitative details are available.
In such circumstances, it is settled principle that only profit which is less than the profit shown on untained purchases should be compared and difference is required to be added to the total income of the assessee. Hon'ble Bombay High Court in M/s Mohd. Haji and Company [2019 (2) TMI 1632 - BOMBAY HIGH COURT] has also upheld the same principle. In the present case, the assessee has also shown one to one co-relation between the quantity of the alleged bogus purchases and consequent sales accounted there from.
We direct the AO to work out the addition only to the extent of the difference in gross profit earned in such tainted purchases with gross profit earned in untainted purchases. The assessee is directed to furnish the requisite information before the AO demonstrate the gross profit of bogus purchases and gross profit of required basis. Appeal filed by AO is dismissed.
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2024 (6) TMI 1367
Denial of deduction u/s 57(iii) of interest expenditure - assessee has offered interest income under the head of interest from other sources - AO was of the view that as assessee agreed to charge interest at the rate of 15% but calculated interest only at the rate of 12% - assessee submitted that the assessee has paid interest to some of the parties at the rate of 12% and to the borrower the interest was paid at the rate of 15%. Due to economic slowdown the parties to whom the loans were provided the interest rates were negotiated at the rate of 12%.
HELD THAT:- The fact shows that the assessee has earned interest income of ₹ 37,42,093/- and have incurred expenses of ₹ 30,84,320/- resulting into net interest income of ₹ 6,57,773/-.
AO has assumed that assessee should have earned interest income from loans given at the rate of 15% and thereby made the addition at the rate of 3%. This is against the actual interest received by the assessee which are supported by loan confirmation and form no. 26AS. In response to reply under Section 133(6) of the Act also payer of interest confirmed interest as offered by assessee.
The parties confirmed to have paid interest at the rate of 12% as the interest income amount what is accounted for. Therefore the amount of addition made by AO has neither accrued to the assessee nor received. AO also does not have any evidence that assessee received more interest than interest than what is shown. The addition made by AO is incorrect and hence, deleted. Assessee appeal allowed.
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