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Case Laws
Showing 161 to 180 of 844 Records
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2020 (7) TMI 685
Rejection of books of accounts - Trading addition - GP Estimation - HELD THAT:- Assessee has claimed shortage of 0.55% in Petrol during the year as against 0.60% in the past two years and similarly, the assessee has claimed 0.18% in Diesel during the year which is comparable to A.Y 2011-12 and better than 0.20% claimed in A.Y 2010-11. The same provides a more realistic and rationale basis as compared to monthly comparison and will factor-in the climatic and other factors prevailing throughout the year resulting in such shortages.
Even where the Assessing officer intends carrying out monthly comparison, then the shortages claimed in the month of June 2011 should have been compared with shortages in the month of June 2010 and likewise, for other month which however, has not been done in the instant case.
Comparative shortages for two months is not reflective of any inconsistent claim of such shortages for the whole year and it is even not the case of the Revenue that similar discrepancies are found in remaining months. Shortages so claimed by the assessee are lower than what has been claimed and allowed by the Revenue in past two years for which the requisite data is available on record and therefore, the same being found comparable cannot be form a rational basis for rejection of books of accounts so maintained by the assessee. Rejection of books of account is hereby set-aside and the consequent trading addition is hereby deleted.
Disallowance of various expenses - CIT(A) has restricted such disallowances to 10% which is consistent with the disallowances made in the past years and which has been accepted by the assessee. In the result, we are not inclined to interfere with the findings of the ld CIT(A) and the same is hereby confirmed.
Disallowance of salary expenses - claim of the assessee is that the same is fully verifiable for ESI, PF records and has been duly offered to tax, where applicable in their personal tax returns. The matter is accordingly remitted to the file of the Assessing officer to verify the same and where the same is found to be in order, allow the necessary relief to the assessee.
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2020 (7) TMI 684
Levy of penalty u/s 271(1)(b) - non-compliance to the notice issued u/s 142(1) - HELD THAT:- Assessee had already left the country way back in year 2010 and when the notice was issued in July 2017, there was no one available to receive the notice at the last known address, the very service of the notice issued u/s 142(1) is in doubt. CIT(A) has also recorded a similar finding and the AO in his remand report dated 14.06.2019 has also taken note of the fact that the assessee was out of India since 2010 as evidenced by the assessee’s passport.
In such peculiar facts and circumstances where the assessee was out of the country and he had no knowledge of the subject notice and there is nothing on record that the notice was duly served on the assessee, we find that the assessee’s explanation that he could not have complied with the notice is found to be reasonable and the penalty so levied u/s 271(1)(b) - Appeal of the assessee is allowed.
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2020 (7) TMI 683
Deduction u/s 54 denial - AO disallowed the claim of the assessee on account of the fact that the fresh investment has been made in the name of the assessee’s wife and secondly, the assessee has failed to substantiate the cost of construction - HELD THAT:- In the instant case, the assessee has sold a residential house on 29.11.2007 and the same is thus not under dispute. Secondly, the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, one residential house in India. In the instant case, the assessee has purchased a plot of land situated at Plot No. 184, Maruti Nagar, Airport Road, Sanganer, Jaipur on 5.11.2007 and thereafter, has carried out construction of a residential house thereon, which as per valuation report has been carried out during the year 2007-08. The Assessing officer has disallowed the claim of the assessee on account of the fact that the fresh investment has been made in the name of the assessee’s wife and secondly, the assessee has failed to substantiate the cost of construction.
As far as investment made in the name of the assessee’s wife is concerned, we find that the issue is covered in favour of the assessee by decision of the Hon’ble Rajasthan High Court in case of Shri Mahadev Balai vs ITO [2017 (1) TMI 183 - ITAT JAIPUR].
The ratio of the aforesaid decision though rendered in the context of section 54F of the Act, given the similarity of language employed, will equally apply in the instant case in context of section 54. Further, the decision of Hon’ble Madras High Court in case of CIT vs. Natarajan [2006 (2) TMI 136 - MADRAS HIGH COURT] rendered in context of section 54 supports the case of the assessee. Therefore, mere fact that the investment has been made in the name of the wife cannot be a reason for disallowance of deduction under section 54.
Regarding the cost of the construction, the same is supported by the valuation report where the valuer has determined the cost of construction at ₹ 250481/-. Assessee is eligible for claim of deduction under section 54 - Appeal of the assessee is allowed.
Levy of penalty u/s 271(1)(c) - HELD THAT:- As directed to allow the claim of deduction u/s 54, the penalty u/s 271(1)(c) of the Act, being consequential in nature, is hereby directed to be deleted.
Penalty u/s 271F - failure to furnish return of income (ITR) - HELD THAT:- In the instant case, the assessee’s total income without giving effect to the provision of section 54 come to ₹ 9,37,280/- which exceeds the maximum amount not chargeable to tax. The assessee was therefore required to furnish his return of income and in absence of any reasonable cause shown by the assessee for such failure to file his return of income, the penalty u/s 271F is hereby confirmed. Appeal of the assessee is dismissed.
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2020 (7) TMI 682
Condonation of delay of 349 days in filing the present appeal - Penalty u/s 271(1)(c) - Non issue of notices at the new address of the assessee - appeal of the assessee was decided by impugned ex-parte order - notices issued by the ld. CIT(A) at the old address and the assessee has already sifted to the new address - HELD THAT:- It is clear that after the case was transferred to the jurisdiction of the CIT(A), Ajmer the assessee never appeared and attended the proceedings and consequently the appeal of the assessee was decided by impugned ex-parte order. The assessee has explained the reasons for delay in filing the appeal that the assessee has not received the impugned order and came to know about the same only when the order passed /s 271(1)(c) dated 12.03.2020 was served upon the assessee at the new address through the process server of the Department.
There is no dispute about the fact that because of the failure on the part of the assessee to intimate the new address to the CIT(A) the notices issued by the CIT(A) as well as impugned order could not be received by the assessee. We find that explanation of non receipt of the impugned order by the assessee is factually correct however, the reason for such non receipt of the impugned order is the failure on the part of the assessee to give the fresh address to the ld. CIT(A).
Therefore,when the ld. CIT(A) has decided the appeal of the assessee vide impugned ex-parte order, the delay in filing the appeal is due to mistake on the part of the assessee which cannot be regarded as a deliberate or willful default on the part of the assessee. It is settled proposition of law if the cause of delay as explained by the assessee is found to be factual correct then laps on the part of the assessee cannot be a ground for rejecting the condonation of delay.
The cause of substantial justice has to be preferred then the technical consideration. Therefore, even if there is lapse or inaction on the part of the assessee a justice oriented liberal approach has to be taken while considering the condonation of delay. Accordingly, in the facts and circumstances of the case and in the interest of justice we condone the delay of 349 days subject to cost of 2500/-.
When notices issued by the ld. CIT(A) at the old address and the assessee has already sifted to the new address then considering the facts and circumstance of the case as well as in the interest of justice we set aside the impugned order of the ld. CIT(A) and remit the matter to the record of the ld. CIT(A) for deciding the same afresh after giving one more opportunity of hearing to the assessee. Appeal of the assessee is allowed for statistical purposes.
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2020 (7) TMI 681
Reassessment proceedings u/s 147/148 - notice issued in the name of husband of the assessee - HELD THAT:- A fatal mistake cannot be cured u/s 292B and therefore, for this reason alone, notice u/s 148 and subsequent proceedings should be quashed. Re-assessment proceedings were initiated to assess the escaped income of ₹ 2,89,000/- on account of unexplained investments. No addition has been made by the Assessing Officer towards any unexplained investment. Therefore, the very reason for which re-assessment proceedings were initiated were found satisfactorily explained and no addition has been made, than in such a scenario, any other addition made by the Assessing Officer by way of disallowance of the cost of construction cannot be sustained.
Addition under the head income from the head “capital gains” whereby denied the deduction towards the cost of construction - HELD THAT:- We find that the valuer has stated the year of construction as 2008 and has applied the PWD rates for valuation of cost of construction as relevant for year 2008. Therefore, where there is no construction carried out during the financial year 2009-10 relevant to impugned assessment year, there is no question of any investment made in such property during the year and question of any unexplained investment made during the year under consideration, as so stated in the reasons so recorded, thus, doesn’t arise for consideration. Where the very basis for which reassessment proceedings were initiated doesn’t survive, there is no basis for making the impugned addition towards failure to substantiate the cost of construction so claimed by the assessee. We find that the cost of construction is supported by the Valuer report which has determined the cost of constriction applying the PWD rates at ₹ 713,150/- as against cost of construction claimed by the assessee amounting to ₹ 639,000/-. In the result, the addition made is hereby deleted and the matter is decided in favour of the assessee.
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2020 (7) TMI 680
Revision u/s 263 - difference in the amount of gross receipt was not verified by the AO during the assessment proceedings - assessee has shown less amount of gross receipts in comparison to the amount of gross receipt shown in the form 26AS - HELD THAT:- Queries were raised by the AO during the assessment proceedings about the mismatch of the TDS credit claimed by the assessee viz a viz the TDS credit reported in the form 26AS. Similarly, the query was raised regarding the contracts which were completed in the year under consideration.
There was no enquiries raised by the AO about the mismatch in the amount of gross receipts shown by the assessee viz a viz reported in the form 26AS on which TDS was deducted. There was no verification carried out by the AO during the assessment proceedings with respect to the amount of gross receipt shown by the assessee viz a viz the gross receipt reported in the form 26AS. It is the settled law that the order of the AO can be held as erroneous insofar prejudicial to the interest of revenue if there was no enquiry conducted by the AO during the assessment proceedings. See MALABAR INDUSTRIAL CO. LTD. VERSUS COMMISSIONER OF INCOME-TAX [2000 (2) TMI 10 - SUPREME COURT] - Decided against assessee.
Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [2020 (5) TMI 359 - ITAT MUMBAI]
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2020 (7) TMI 679
Reconsideration of Resolution Plan - application of mind by Adjudicating Authority before approving or rejecting a Resolution Plan - irregularities committed by the Resolution Professional and the Committee of Creditors in applying the evaluation matrix under the guise of using the commercial wisdom to the Plan submitted by the Appellant and the successful Resolution Applicant - HELD THAT:- The commercial wisdom of the CoC is paramount, and it has the absolute prerogative to decide the viability and feasibility of the Resolution Plans presented before them and the same is not to be interfered even by the Adjudicating Authority.
In the present case, the CoC after evaluating both the Resolution Plan being that of STPL and IMR based on pre-disclosed evaluation criteria approved the Resolution Plan of STPL by a voting share of 95.15% and the same is duly reflected in e-voting result of 31st CoC meeting held on 11th and 12th November 2019 - in the present case, the Resolution Professional received only one Resolution Plan of STPL within the stipulated timeline which was duly recorded in the minutes of 29th CoC meeting held on 30.10.2019. After that, on 07.11.2019, unsuccessful Resolution Applicant IMR approached the R.P. expressing its interest to submit a Resolution Plan, though the period of submission was already expired on 30.10.2019.
The Appellant cannot question the commercial wisdom of the CoC in rejecting the Resolution Plan, with the requisite majority and in approving the Resolution Plan of SPTL. No material irregularity in Corporate Insolvency Resolution Process before the R.P. has been demonstrated - the impugned order has been passed on proper Application of mind.
The Impugned Order regarding approval of Resolution Plan need not be interfered - appeal dismissed.
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2020 (7) TMI 678
Maintainability of application - initiation of CIRP - default in repayment of outstanding loan amount - scope of financial debt - conflict between the provisions of the IBC, 2016 and the Tea Act, 1953 - HELD THAT:-The term "finance account" has been defined as the account relating to the temporary finance granted by the lender to the corporate debtor. It has also been mentioned that a resolution under section 293(1)(d) of the Companies Act, 1956 had been passed by the shareholders of the corporate debtor to enable the company and its directors to borrow loans not exceeding ₹ 1,200 crores and avail of temporary finance within the limit of borrowing of the corporate debtor-company. It is also mentioned that the financial creditors were approached by the corporate debtor. It is also mentioned that disbursement could be made in intervals/instalments. The broker is also nominated by the corporate debtor. Interest element also exists. Further, the financial creditors are not in the business of purchase and sale of tea.
When we see these terms and conditions, we are totally amused as to on what basis the corporate debtor could claim that this is a transaction of sale and purchase of tea and not of financing. There are no substance in the plea of the corporate debtor that it is not a financial debt within the meaning of section 5(8) of the IBC, 2016 for the simple reason that it also carries interest, whereas, in our considered opinion, if the money is given even without interest, still it has time value of money as it results into an economic advantage to the borrower at free of cost over a period of time when the value of money decreases due to inflation. The transactions of loan/advance are specifically covered under section 5(8)(a) as these have been borrowed against interest. Even, considering the fact of repayment of loan to one of the financial creditors and other surrounding circumstances as well, such claim made by the corporate debtor appears to be of no help particularly when no other material/documentary evidence has been brought on record to show that the tenure of the loan has been extended. Thus, in the background of the facts and circumstances and applicable legal position, as discussed herein above, we are of the considered view that the transaction is of the nature of financial debt within the meaning of provisions of section 5(8) and 5(8)(a) of the IBC, 2016.
As per section 5(8)(f) of the IBC, 2016, this transaction has got the trappings of commercial effect of borrowing, hence, for this reason also this is a financial debt.
The petition is complete and defect-free - application admitted - moratorium declared.
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2020 (7) TMI 677
Approval of Resolution Plan - CIRP process - scope of the committee of creditors to look into the matter - HELD THAT:- The unsuccessful resolution applicant has filed this application. There is no merit in the stand of the applicant, the applicant was given opportunities to revise and submit better plan. Both the resolution applicant were treated at par. In fact, this resolution applicant wanted to participate and submit its resolution plan after the deadline. The committee of creditors has allowed the same and has accepted the plan of the applicant for evaluation. Hence, from the records it is clear that the scoring of the successful applicant is more than that of the applicant. Hence, the allegation of this applicant that there is error in marking of score by the committee of creditors is not correct and not acceptable. The evaluation matrix applied was same for both the parties.
The opportunities to submit revised resolution plan was given to both the parties. Both the resolution applicants participated in the meeting. Hence, no discrimination apparently on the face of it.
Both the resolution applicants were treated at par and equal opportunities were given to submit the plan/revised the plan and to participate in the meetings. There is no discrimination per se - The decision of the committee of creditors to approve the resolution plan of the M/s. Sterlite Power Transmission Ltd., is upheld.
Application dismissed.
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2020 (7) TMI 676
Jurisdiction - Withholding of refund - Refund of pre-deposit amount alongwith the interest - the impugned order was passed by the Sales Tax Officer - HELD THAT:- This petition deserves to be allowed on the sole ground that the impugned order was passed by the Sales Tax Officer, who had no authority to withhold the amount under Section 39 of the VAT Act.
A plain reading of Section 39 of the VAT Act stipulates that the power is vested in the Commissioner to withhold the refund upon recording an opinion that the revenue would be adversely affected and that too after affording due opportunity to the assessee - In the present case, there is no order passed by the Commissioner recording his satisfaction and since there is no order of the Commissioner, there is no question of affording any opportunity. The Sales Tax Officer has no authority to withhold the amount under Section 39 of the VAT Act. At the best he could have referred the matter to the Commissioner for taking appropriate decision, if he was of the view that the revenue would be adversely affected. That having not been done, the order of the Sales Tax Officer dated 18.10.2019, impugned in the present petition (Annexure-A), cannot be sustained.
Normally, an opportunity would be given to the Commissioner to pass an order, but since no such power has been exercised by the Commissioner for the last 5 years, today we are not inclined to grant such liberty.
Whether appropriate direction for refund would be given or not - no appeal had been filed before the Supreme Court - HELD THAT:- As per the impugned order, till that date, no appeal had been filed before the Supreme Court. Further the petitioner had succeeded before the Tribunal in August, 2015. The Department took two years to file appeal before the High Court which was dismissed in October, 2018. Thereafter, much later the Department has simply submitted an appeal before Supreme Court on 05.03.2020 and Dairy No.9032 of 2020 was allotted and till date no further progress has been made in the said appeal. Admittedly, the Commissioner has not exercised the powers - the refund should forthwith be made to the petitioner along with admissible interest permissible under law from the date of deposit till the date of actual payment.
The impugned order passed by the respondent No.2 is hereby quashed and set aside with further direction to the respondents to refund the amount of ₹ 15 lakhs along with statutory interest within a period of two weeks from the date of production of the certified copy of this order - petition allowed.
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2020 (7) TMI 675
Principles of natural justice - service of notice - Concessional rate of tax - inter-state sales - entire turnover covered by C-Forms - rate of tax applicable under Section 8(1) of the CST Act - HELD THAT:- There has been a grave violation of principles of natural justice in as much as the personal hearing notice dt.30.03.2020 was served at 7.15 p.m. through e-mail and the impugned assessment order was passed on the very next day i.e 31.3.2020 when there was a lockdown prevalent on account of COVID-19 pandemic situation and the petitioner was disabled from availing the personal hearing offered by the 1st respondent.
The matter is remitted back to the 1st respondent for fresh consideration - Petition allowed by way of remand.
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2020 (7) TMI 674
Completion of assessment - levy of tax on gross and net turnovers - taxability under CST Act - Petitioner contended that the turnover that had been declared in the monthly VAT 200 returns were the service charges, which the petitioner received in the State of Telangana, on which the petitioner is paying service tax under the Finance Act, 1994 - HELD THAT:- When the petitioner had specifically raised a contention that the petitioner has no turnover, which is taxable under the CST Act, 1956, and what was declared by it in the monthly VAT returns is service tax, which the petitioner is receiving in the State of Telangana for allowing Telecom Operators to use the tower facilities erected by it in the State, on which the petitioner was paying service tax under the Finance Act, 1994, the 1st respondent is expected to advert to the said contentions and deal with it in the impugned assessment order. However, the 1st respondent has not done so, while passing the impugned assessment order.
The matter is remitted back to the 1st respondent to consider afresh the objections filed by the petitioner - Petition allowed by way of remand.
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2020 (7) TMI 673
Validity of Section 4(8) of the Telangana VAT Act, 2005 read with Section 2(28) Explanation (iv) - Section 65(105)(O) of the Finance Act, 1994, vires to Entry 54 of List II of the VII Schedule to Article 14 and Articles 19(1)(g) and 245 of the Constitution of India - validity of Audit Assessment Proceedings - time limitation.
HELD THAT:- The impugned assessment proceedings dt.13.03.2020 for the tax period 2013-14 to 2016-17 passed by the 1st respondent is set aside - the matter is remitted back to the 1st respondent for fresh consideration; the 1st respondent shall permit the petitioner to file additional objections to the notice dt.23.01.2020 issued by the 1st respondent, if the petitioner so desires; afford a personal hearing to the petitioner; and then the 1st respondent shall pass a reasoned order in accordance with law and communicate it to the petitioner.
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2020 (7) TMI 672
Reversal of Input Tax Credit - alleged mismatch between the particulars circulated by the petitioner and the particulars available in the selling/purchasers return of turnover - periods 2010-11 to 2015-16 - TNVAT Act - HELD THAT:- This issue had been considered by this Court in M/s. JKM Graphics Solutions Private Limited V. Commercial Tax Officer [2017 (3) TMI 536 - MADRAS HIGH COURT] and the Court had directed that a suitable central mechanism be evolved within the Department to delve into various aspects of mismatch. Pursuant thereto, a Circular was issued by the Commissioner bearing No.3 of 2019 (Q1/39643/2018 dated 18.01.2019), wherein at paragraph (c) the Commissioner directs the Authorities to keep assessments involving the issue of mismatch in abeyance, however issuing pre-assessment notices in time in order that the assessments are kept alive until such time the central mechanism is put in place.
There is no justification for the Assessing Officer in the present matters to have finalized the assessments themselves, being clearly contrary to the directive of the Commissioner. Hence, the impugned orders of assessment are set aside.
Petition allowed.
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2020 (7) TMI 671
Reversal of Input Tax Credit - levy of penalty - discounts received by the petitioner from the supplying dealers - packing materials purchased by the petitioner from local registered dealers - TNVAT Act.
Reversal of ITC on discounts received by the petitioner from the supplying dealers - HELD THAT:- Since Section 19(20) which has been invoked to deny the benefit of ITC, has itself been inserted only with effect from 19.08.2010. Though a Division Bench of this Court had initially held that the provision would operate retrospectively and impact prior assessment periods as well, the Supreme Court in the case of JJAYAM & CO. VERSUS ASSISTANT COMMISSIONER & ANR. [2016 (9) TMI 408 - SUPREME COURT] reversed the aforesaid conclusion of this Court confirming the position that Section 19(20) would operate only from the date of its insertion, prospectively, i.e., from 19th August, 2010.
Thus the provision could not have been invoked in the present case, for the period, viz. 2008-09 - The invocation of Section 19(20) in the present case is thus not in order and to this extent, the assessment is quashed. Penalty levied under Section 27(4) to this extent is also quashed.
Reversal of ITC in regard to packing materials - HELD THAT:- The petitioner has specifically challenged this reversal relying on the provisions of Section 19(2)(ii) of the Act, which permits the grant of input tax on packing materials, containers and label and other materials used for packing goods. This ground has not been referred to or adjudicated upon by the Appellate Authority and hence, the order of the first respondent is quashed and the matter remitted to the files of the Assessing Officer to be redone de novo after taking into account the submissions of the assessee, in accordance with law.
Petition disposed off.
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2020 (7) TMI 670
Profiteering - Jurisdiction - time limitation - principles of natural justice - commensurate reduction in GST prices to its recipients, by grammage increase - HELD THAT:- Petitioner is directed to deposit the principal profiteered sum of ₹ 2,33,456/- within two weeks. Upon deposit of the said amount, interest amount as well as the penalty proceedings initiated by the respondents shall stand stayed till further orders.
List the matter on 24th August, 2020 along with other connected matters.
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2020 (7) TMI 669
Maintainability of appeal - alternative remedy of appeal - Release of seized goods along with conveyance - Confiscation - appealable order or not - section 130 of CGST Act - HELD THAT:- As a final order of confiscation has been passed and the same being an appealable order, we relegate the writ applicant to file a statutory appeal as provided under Section 107 of the Act. Along with the appeal, it shall be open for the writ applicant to prefer a Miscellaneous Application under section 67(6) of the Act 2017 for provisional release of the vehicle pending the final disposal of the appeal.
If any such application under section 67(6) of the Act is filed by the writ applicant, then the authority concerned shall look into the same at the earliest and pass an appropriate order in accordance with law - application disposed off.
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2020 (7) TMI 668
Refund withheld u/s 241A - limited scrutiny under Section 143(2) - only ground for withholding refund is that since case of the petitioner has been selected for scrutiny u/s143(2) assessment is yet not complete and therefore genuineness of the refund claimed by the assessee is yet to be verified - Neither the copy of the order nor the reasons for withholding the refund were provided to the petitioner and accordingly, the present writ petition has been filed - HELD THAT:- The exercise of withholding of refund u/s 241A pursuant to notice u/s 143(2) without recording justifiable reasons, is not in consonance with the legislative intent and mandate of the aforesaid provision. The reasons cited do not support the finding that refund would adversely affect the Revenue.
Reasoning given by the Income-Tax Officer is contrary to Section 241A of the Act. Accordingly, we set aside the impugned communication/ order dated 10.01.2020 - grant three weeks' time to the respondents to re-consider the aspect whether the amount found due to be refunded, or any part thereof, is liable to be withheld under Section 241A in line with the decisions of this court as noted above. The entire consideration, with the approval of the Principal Commissioner of Income Tax to the withholding of the refund amount, or any part thereof, should be completed.
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2020 (7) TMI 667
Penalty levied u/s 271(I)(c) - Whether "Mens rea" is apparent in this case? - HELD THAT:- Imposition of penalty and realisation thereof is not a regular source of income for the Income Tax Department. It is only the justifiably imposition of tax which is intended to be recovered and unless there is a mens rea or a guilty animus on the part of the Assessee, the penalty under section 271(1)(c) of the Act is an exception rather than a rule.
In these circumstances, where the two regular appellate authorities have granted the relief to the Assessee by deleting the penalty imposed by the Assessing Authority under section 271(1)(c) of the Act, we don't think that it is a fit case for re-imposition thereof, by allowing the appeal of the Department before us under section 260A of the Act, which lies only on the substantial questions of law arising from the order of the learned Tribunal. No substantial question of law.
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2020 (7) TMI 666
Deemed dividend u/s 2 (22)(e) - advance made by the subsidiary company to the respondent/holding company - HELD THAT:- This Court already has decided the said issue against the same appellant, holding that the sum of ₹ 3.00 Crores received by the respondent company from its subsidiary relevant to the assessment year 2004-05, is not deemed dividend within the meaning of Section 2(22)(e) of the Act.
Advance received by the respondent from its subsidiary has been shown in the balance sheet of the respondent, relevant to the assessment years 2002-03 and 2004-05. The department has initiated two separate proceedings for the single transaction and the said proceedings have been dragged up to the level of this Court. Obviously, the department would have been well aware of the fact that the amount of ₹ 3.00 Crores advanced by the subsidiary to its holding company, cannot be taxed twice. When such being the position, we are really surprised to see that the initiation of two separate proceedings for the same transaction is not appreciable. Had the department have applied its mind in a proper manner, they could have avoided these type of vexatious proceedings and it would have saved the precious time of this Court as well as the department. No substantial question of law arising in this appeal.
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