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Showing 261 to 280 of 16576 Records
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2021 (12) TMI 1269
Maintainability of appeal - pre-deposit of the amount of certain percentage of duty demanded or penalty imposed which was mandatory to be deposited before filing the appeal - section 35F of Central Excise Act, 1944 - HELD THAT:- Perusal of section 35F of Central Excise Act, 1944 makes it apparent and clear that the requirement of this section is mandatory requirement and the failure thereof results in rejection of appeal ‘in limine’ . However keeping in view the acknowledgement of the appellant for pursuing this matter to be adjudicated on merits, it is being reasonable in the interest of justice that the matter be remanded back to the Commissioner (Appeals) with the direction to the appellant to make good the absence of payment of amount of mandatory pre deposit prior for the appeal being heard by Commissioner (Appeals). In nutshell the appellant is allowed an opportunity to make the compliance of the section 35F of Central Excise Act.
Appeal allowed by way of remand.
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2021 (12) TMI 1268
Work contract service - the appellant has received the amount towards the provisions of said services from their service receiver but have not paid the Service Tax on such taxable receipts - extended period of limitation - HELD THAT:- There is no dispute about the fact that the amount of Service Tax for the amount of consideration received by the appellant stand already paid with the Government exchequer, however by the main contractor M/s. Gannon Dunkerley and Co. Ltd. There is also no denial to the fact that during the period there were several pronouncements made not only by this Tribunal but even by the departmental adjudicating authority holding that the sub-contractor is not liable to pay the Service Tax when the main contractor has paid the said Service Tax.
The facts of the case are sufficient to hold that there was no clarity about the individual liability of the sub contractor towards the payment of service tax. Even the Department was not clear on the interpretation of the circulars issued, judgements made and practice followed on sub contractors liability. As such in the case where the main contractor had discharged the Service Tax on entire value of service. These findings are sufficient for me to hold that there cannot be any intentional conduct of the appellant to not to pay the service tax during 2013-14. Alleging fraud mis-statement or suppression of facts upon the appellant in view of prevalent situation is opined to be definite error on part of the Adjudicating Authority below. The onus was otherwise on the Department to prove that short payment of service tax has been made with intent to evade such payment. Apparently and admittedly in the present case the service tax stands already paid with respect to the amount involved in the present appeal, i.e. the amount of consideration received by the appellant/ sub contractor for providing ‘works contract services’ to main Contractor M/s. Gannon Dunkerley & Co. Ltd. The question of any positive evidence proving evasion does not at all arise.
The impugned show cause notice is held to be barred by limitation - Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1267
Depreciation on demerger - AO has disallowed depreciation on the ground that the assessee had received assets free of cost from the Government of UP - AO noticed that the assessee took over the assets on transferred from UPJVNL but for the liability side did not take over the loans transferred in full form UPJVNL - AO had concluded that the assessee had only taken over the assets for which the liabilities were not ascertained till date - HELD THAT:- We have gone through the entire contents and the history of the assessee. In this case, the assets have been transferred from Uttar Pradesh Government (UPJVNL) to Uttaranchal Government (UJVNL). There is no claim of the depreciation twice by both the Governments. The demerger led to division of assets in a fixed ratio and the same was duly accounted for both the entities as per the written down value (WDV) as on that date. The depreciation on de-merger cannot be a forgone benefit owing to de-merger, which is the result of state reorganization. Hence, we decline to interfere with the reasoned order of the Ld. CIT (A). - Decided against revenue.
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2021 (12) TMI 1266
Requirement of GSTR 9 and 9C for FY 2017-18 as both the GSTN turnover is above Two Crore - under which GSTN the Income Tax returns must be reconciled as Part of the turnover i.e., July to Nov 17 is shown under old GSTN and from Dec to Mar 18 turnover is shown under new GSTN - claiming of Credits reflected in old GSTN 2A from Dec 2017 to till date which are not rectified by the suppliers - HELD THAT:- That this state of things came into being at the time of migration from the earlier tax regime to GST regime - That they have stopped business in one GSTIN and continuing in the other only. However certain credits are lying unutilized in the GSTIN where they have stopped business and would like to carry the credits into the active GSTIN. Therefore they have approached the AAR regarding the matter.
It is observed by the AAR that the question raised by the applicant does not fall within the scope of Section 97 of Chapter XVII of the CGST Act, 2017 - the application is not admitted.
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2021 (12) TMI 1265
Levy of IGST - supply of imported goods on High Sea sale basis or supply of goods from FTWZ facilities by the Applicant to the Indian customers - input tax credit already taken will have to be reversed or not - discharge of obligation in terms of Sec 31 of the CGST Act, 2017 - whether the Applicant ought to obtain registration in the States of Maharashtra and Tamil Nadu (location of the FTWZ facilities) for sale of such goods from the FTWZ facilities belonging to the logistic service provider namely DHL?
HELD THAT:- The transactions proposed to be made by the applicant are covered by Entry 8 of Schedule III of CGST/SGST Acts inserted vide CGST (Amendment) Act, 2018 w.e.f. 1-2-2019, i.e., supply of goods by the consignee to any other person, by endorsement of document of title of the goods, after the goods have been dispatched from the port of origin located outside India but before the clearance for home consumption; or supply of warehoused goods to any person before clearance for home consumption. And such transactions by virtue of Entry 8 of Schedule III do not attract tax under CGST or SGST or IGST Acts.
Further, according to the explanation to section 17(3) of CGST Act inserted vide CGST (Amendment) Act 2018, w.e.f. 1-2-2019 all transactions falling under Schedule III except Entry 5 will not be considered as 'value of exempted supply for purpose of reversal of ITC of common input services. Therefore the value of the transaction referred will not form part of value of the exempt supply.
The applicant directs the FTWZ warehouse keeper to deliver the goods to a customer chosen by the applicant. Under Section 10(1)(a) of the IGST Act the place of supply in such case shall be the location of goods at the time of which the movement of goods terminates for the delivery to the recipient - the applicant i.e. supplier in this case is situated at Hyderabad, Telangana State whereas the goods are delivered in Other States. That is the supplier of the goods and the place of supply of goods are in two different states. Therefore it is an inter-state supply. Hence the applicant need not obtain any registration in the Other State in order to effect such inter-state transactions.
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2021 (12) TMI 1264
Seeking grant of anticipatory Bail - availment and passing of inadmissible Input Tax Credit - using fake invoices or bills - offences punishable under Sections 132(1)(b) and (c) of the CGST Act - HELD THAT:- There is prima facie material showing involvement of the applicant in commission of the offences alleged. The investigation is in progress. If released on bail the applicant may destroy the evidence likely to be collected and may influence the witnesses. Considering same circumstances in the background that the offence is economical affecting national economy and has to be dealt with sensitively, it is not just and proper at this stage to grant bail to the applicant.
The bail application is dismissed.
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2021 (12) TMI 1263
Seeking grant of anticipatory bail - allegation is that the applicant availed as well as passed on ineligible input tax credit from and to non existing firms - HELD THAT:- In the case in hand, on perusal of material on record and the investigation papers it appears that the applicant’s Swara Jewels had dealt with Arihant Traders and M/s. Sandeep Trading. The ITC availed in connection with these two firms is difinitely below ₹ 5 crores. However, the matter does not end here. Dealing with golden Bullion and Gajmukhi Bullion and Mumbadevi also, the applicant availed ITC.
The total amount of availment of ineligible ITC is more than ₹ 6 Crores. It may be noted here that respondent No.2 had inputs that Gautam Joshi has created fake entities, and the applicant Swara Jewels has paper transaction with the same entities. Respondent No. 2 has recorded the statement of Gautam Joshi where he admitted that he has created fake entities as Mumbadevi Jwellers and Arihant Traders. The statement of the applicant as recorded by respondent No.2 also reveals that the applicant has dealt with these entities i.e. Arihant Trading, M/s. Sandeep Traders, Gajmukhi and Mumbadevi Bullion in connection with Guatam Joshi. At this infant stage of investigaion, this much material is sufficient to make out prima facie case against the applicant. Since apparantly, these entities do not exist, if anticipatory bail is granted, the applicant is likely to destroy the evidence regarding the matter.
This Court is not inclined to grant anticipatory bail to the applicant as the investigation is at initial stage and apparently at this stage as per the contention of respondent No. 2 the amount of availament of input tax credit is more than ₹ 6 Crores which may rise up in further inquiry - anticipatory bail cannot be accepted.
Application rejected.
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2021 (12) TMI 1262
Refund claim - Adjustment of amount against outstanding demand - stay on recovery of outstanding tax demand subject to fulfillment of appropriate conditions - HELD THAT:- Refunds have been adjusted against the outstanding tax demand by the Authority without following the procedure prescribed under Section 245 of the Act, inasmuch as no notice or opportunity of pre-decisional hearing had been provided to the Petitioner prior to such adjustment of refund in excess of 20%, this Court is of the opinion that the Petitioner is entitled to refund of adjustments made in excess of 20% of the disputed tax demands. (See: Glaxo Smith Kline Asia Pvt. Ltd. vs. The Commissioner of Income Tax & Ors.,[2007 (1) TMI 113 - DELHI HIGH COURT] and The Oriental Insurance Co. Ltd. vs. Deputy Commissioner of Income Tax & Anr. [2014 (10) TMI 746 - DELHI HIGH COURT]
This Court directs the Respondents to verify the facts stated in the writ petition and if they find them to be true and correct then refund the amount adjusted in excess of 20% of the disputed tax demands for the Assessment Year 2016-17 to the Petitioner within six weeks.
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2021 (12) TMI 1261
Assessment u/s 153C - non issue of notice u/s 142 - notices under Sections 142(1) and 143(3), were in all probability sent to the earlier e-mail address of the petitioner, which had become defunct - violation of the principles of natural justice, as he was not served with the requisite statutory notices, leading to passing of the assessment order - HELD THAT:- Though respondent No.1 has stated that he had sent the notice under Section 142(1) of the Act, firstly on 30.08.2021, and thereafter on 17.09.2021 with corrigendum on 27.09.2021, nothing has been stated regarding service of notice. All that is stated is that the assessee did not respond to any of the notices. If this is read in conjunction with the averments made in paragraph No.4 of the counter affidavit filed by the respondents, it becomes evident that the notices were sent by the respondent to the earlier e-mail address of the petitioner, which has now become defunct.
Petitioner has now a new e-mail account being ‘[email protected]’, which was duly informed to the Income Tax Department on 15.08.2019.
That being the position, we are of the view that petitioner was not heard before passing the impugned order of assessment. There is thus violation of the principles of natural justice.
The impugned assessment order should be set aside with a direction to respondent No.1 to pass fresh assessment order for the assessment year 2019-20 in accordance with law,
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2021 (12) TMI 1260
Benefit of carry forward losses - assessee has filed its return of income beyond the stipulated due of 30.09.2013 - HELD THAT:- It is an undisputed fact that assessee had filed the return of income for A.Y. 2013-14 on 22.11.2013 whereas as per Explanation 2(a) to Section 139, the last date for filing the return of income was 30.09.2013. It is also an undisputed fact that assessee had filed Form 3CEB. The perusal of Form 3CEB placed in the paper book reveals that it has been certified by the Chartered Accountant on 30.11.2013 and further as per the aforesaid form, the value of international transactions or specified domestic transactions is reported at Rs. Nil.
Return of income has been filed by assessee on 22.11.2013 meaning thereby that the Form 3CEB has been obtained after the filing of return of income - the perusal of the Form 3CEB also reveals that there is no mention of the amount received on capital account nor does it state any reason for not reporting the receipt amount on capital account in the Form 3CEB. Considering the totality of the aforesaid facts, we find that the CIT(A) was fully justified in holding that since assessee has filed its return of income beyond the stipulated due of 30.09.2013, the assessee was not eligible to claim the carry forward of the losses. We thus find no infirmity in the order of CIT(A) and therefore we uphold the order of CIT(A). Thus the grounds of assessee are dismissed.
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2021 (12) TMI 1259
Exemption u/s. 80P(2)(a)(i) in respect of interest on fixed deposits with Bank of Baroda - AO denied the exemption of interest treating it under the head ‘income from other sources’ not as ‘income from business' - CIT(A) upheld the contention that the said interest income should be assessed as ‘income from business’, however he denied the claim of exemption u/s. 80P(2)(a)(i) on the ground that the assessee lends money to nominal members - AO as well as the CIT(A) were of the opinion that the interest earned from third parties or non-members does not quality for exemption u/s.80P - HELD THAT:- It is an admitted position that the interest so earned should be taxed as ‘income from other sources’ There is a cleavage of judicial opinion among several High Courts on the issue of eligibility of this kind of income for exemption u/s. 80P(2)(a)(i) of the Act. The Hon’ble Punjab & Haryana High Court in the case of CIT vs. Punjab State Cooperative Federation of Housing Building Societies Ltd. [2016 (12) TMI 560 - PUNJAB AND HARYANA HIGH COURT] took a view that the income arising on the surplus invested in short term deposits and securities cannot be attributed to the activities of the society and, therefore, not eligible for exemption u/s.80P(2)(a)(i) of the Act. However, the Hon’ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT]took a view that such interest income is attributable to the activities of the society and, therefore, eligible for exemption u/s.80P(2)(a)(i)
The Coordinate Bench of Pune Benches in the case of M/s. Ratnatray Gramin Bigar Sheti Sah. Pat Sanstha Maryadit [2018 (12) TMI 1926 - ITAT PUNE] has taken view in favour of the assessee following the judgment of Hon’ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. (supra). Respectfully following the decision of the Coordinate Bench, we hold that the interest income earned on the investment of surplus money with banks is also eligible for exemption u/s.80P(2)(a)(i) of the Act. Thus, the grounds of appeal No. 1 & 2 stands allowed.
Claim for exemption of interest earned on the securities held with RBI - We allow these grounds in favour of the assessee and direct the AO to exempt the interest earned on securities held with RBI under the provisions of section 80P(2)(a)(i) of the Act
Denial of exemption u/s.80P(2)(a)(i) - whether the nominal members are also the members of the Cooperative societies or not? - HELD THAT:- The term “members” is not defined in the Income Tax Act, 1961. Under the provisions of Maharashtra Cooperative Societies Act, 1960, the term “members” include nominal members and extraordinary members and in the circumstances, we hold that the CIT(A) was not justified in denying the exemption u/s.80P(2)(a)(i) of the Act. This ground is also allowed.
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2021 (12) TMI 1258
Reopening of assessment u/s 147 - addition on account doubtful debt while computing the book profits u/s 115JB - rectification proceedings u/s 154 initated - HELD THAT:- We find that during the original assessment proceedings, vide query letter dated 20.10.2015 at Point No. 23, the Assessing Officer raised a specific query asking the assessee to furnish a detailed note on book profit as per section 115JB of the Act and vide query No. 24, details in respect of exempt income earned, alongwith details of expenses incurred for earning such income and quantify the disallowance u/s 14A r.w.r 8D of the Rules was asked by the AO.
Issuing notice u/s 148 of the Act, the Assessing Officer had already initiated rectification proceedings u/s 154 of the Act and the assessee had furnished detailed reply as mentioned elsewhere. We find that no rectification order has been framed by the Assessing Officer u/s 154 of the Act and yet, for the same reasons, reassessment proceedings were initiated.
Once rectification proceedings have been initiated, then for identical reasons, reassessment proceedings cannot be initiated unless the rectification proceedings culminate into an order, duly framed as per the provisions of law - there is no evidence brought on record by the Revenue that the proceedings initiated u/s 154 of the Act are concluded or communication to that effect has been sent to the assessee. Therefore, under these circumstances, it cannot be said that the assessment proceedings were completed as the order passed u/s 154 is also an order which can be subjected to appeal and revision and as the proceedings have not been completed on record, it cannot be said that income has escaped assessment.
Similar view has been taken by the co-ordinate bench at Mumbai in the case of Jet Speed Audio Pvt Ltd [2012 (8) TMI 332 - ITAT, MUMBAI] and Yasmin Texturing Pvt Ltd I [2012 (5) TMI 724 - ITAT MUMBAI] - Considering the totality of the facts as mentioned elsewhere, notice u/s 148 of the Act is bad in law and deserves to be quashed.- Decided in favour of assessee.
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2021 (12) TMI 1257
Penalty levied u/s 271B - assessee not got her accounts audited u/s 44AB - HELD THAT:- We do not find any discussion on the aspect of provisions of section 273B of the Act which provides that no penalty shall be imposed if the assessee proves that there was a reasonable cause for the failure to comply with the law. In the present case, we find that the profit & loss account of the assessee submitted before us does not have any gross receipts, turnover. The cost of the project is shown as work-in-progress.
The assessee follows project completion method. Therefore, the claim of the assessee was that she was under a bonafide belief that provisions of section 44AB of the Act does not apply and hence, no audit under section 44AB of the Act was got done. We find that this is a reasonable cause which has resulted into failure of the assessee to comply with the law - we find that penalty under section 271B of the Act cannot be levied for the reason that there was a failure on the part of the assessee to obtain tax audit report because of a bonafide belief that there is no turnover, gross receipts, etc. The revenue could not show that the belief of the assessee was malafide.
We find that in the present case, the assessee has shown the cost of the project as work-in-progress. Therefore, whenever the assessing officer would like to examine the income earned by the assessee, naturally, he will have to examine the composition of total work in progress also. He would be entitled to further considering the allowability or disallowability of expenses included in work in progress for the reason that the assessee would be claiming deduction of the same in the year in which project is complete. In view of this, we reverse the orders of the lower authorities and direct the learned assessing officer to delete the penalty levied under section 271B - Decided in favour of assessee.
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2021 (12) TMI 1256
Revision u/s 263 - period of limitation - reopening of assessment u/s 147 - assessee had claimed accumulation u/s.11(2) for which the assessee had not submitted Form No.10 and hence, the said accumulation should be disallowed - receipt of consultancy fees - HELD THAT:- Admittedly, the receipt of consultancy fees has been duly reflected in the income and expenditure filed by the assessee along with the original return of income filed on 25/03/2009. So, the Assessing Officer had two innings - once during the original scrutiny assessment proceedings and again during the re-assessment proceedings to examine the aspect of receipt of consultancy fees. In the re-assessment proceedings whatever that was sought to be verified by the ld. AO had been duly verified in the final re-assessment order. Hence, there cannot be any error that could be attributed in the order of re-assessment of the ld. AO.
In the instant case, the receipt of consultancy fee does not fall within the ambit of expression “income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of proceedings under this Section”, as the consultancy receipts was very much disclosed by the assessee in the income and expenditure account which was filed along with the original return of income itself. If at all there is any error in the assessment order framed by the ld. AO, it can only be in the original scrutiny assessment order u/s.143(3) of the Act dated 13/12/2010 and not in the re-assessment order framed u/s.143(3) r.w.s. 147 of the Act dated 22/02/2016. Hence, the show-cause notice issued by the ld. CIT(Exemptions) dated 28/02/2017 is squarely beyond the period of two years from the end of the financial year in which the 143(3) assessment was completed as per Section 263(2) of the Act. Hence, it could be safely concluded that the re-assessment framed by the ld. CIT(Exemptions) on 21/03/2018 is squarely barred by limitation. See ALAGENDRAN FINANCE LTD. [2007 (7) TMI 304 - SUPREME COURT] - Decided in favour of assessee.
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2021 (12) TMI 1255
Non-apportionment of expenses in respect of its share with holding company - CIT-A deleted the addition - assessee is a public limited company engaged in the business of merchant banking - HELD THAT:- As the assessee had only parted the net profit from the collaboration project with its holding company. We find that the ld. AO had wrongly misunderstood the fact by stating that assessee had only shared the gross revenue and had claimed the entire expenses as deduction in its books. This is factually incorrect. Accordingly, the disallowance of ₹ 3,44,24,282/- ( being 50% of expenses incurred on collaboration project of ₹ 6,88,48,564/-) on account of non-apportionment of expenses is hereby directed to be deleted as the ld. CIT(A) had rightly understood the fact and modus operandi adopted by the assessee. Accordingly, the ground No.1 raised by the Revenue is dismissed.
Disallowance on account of apportionment of bad debts - CIT-A deleted the addition - HELD THAT:- As categorical factual finding of the ld. CIT(A) has not been controverted by the Revenue before us. Hence, we hold that there is no question of sharing of bad debts written off with the holding company. Once, it is found that assessee had indeed offered the fee income in earlier years in its entirety, any non-realisation of the said fee which resulted in bad debt would be eligible for deduction if the same is written off in the books of accounts. In the instant case a sum of ₹ 1,79,66,908/- remain irrecoverable and the same was duly written off by the assessee in its books in A.Y.2011-12, which becomes squarely eligible for deduction in the hands of the assessee company. There is no question of sharing the same with the holding company. This fact has been duly appreciated by the ld. CIT(A). Accordingly, the ground No.2 raised by the Revenue is dismissed.
Disallowance of bonus paid to employees including the key management persons - HELD THAT:- Certain employees who have been made Director or Managing Director of specific department inside the company. They are not the Directors of the assessee company as per the Companies Act. The assessee also furnished the list of Directors of the assessee company to justify this contention. Hence, the entire reliance placed on the provisions of Section 40A(2)(b) of the Act was totally unjustified. The ld. CIT(A) also observed that on perusal of the tax audit report, only one person namely Shri Tapasije Mishra, Group CEO, to whom bonus was paid figures in the list of related party transactions, specified u/s.40A(2)(b) - CIT(A) also observed that there is no tax arbitrage involved in the same as the said employee also suffers tax at the maximum marginal rate of 30%. In any case, the disallowance was made by the ld. AO only on an adhoc basis at the rate of 25% without rejection of books of accounts by pointing out some defects thereof. None of these factual observations controverted by the Revenue before us. We hold that the bonus was paid to the employees including the key management personnel only in the ordinary course of business and the same are squarely allowable as deduction u/s. 37 - ground No.3 raised by the Revenue is dismissed.
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2021 (12) TMI 1254
Disallowance u/s 14A r.w.r. 8D - Mandation of recording satisfaction - HELD THAT:- Section 14A(2), read with rule 8D of the Rules provides that before applying the theory of apportionment in form of Rule 8D. Assessing Officer needs to record his satisfaction that having regard to the kind of the assessee, it is incorrect that assessee has not incurred any expenditure in relation to exempt income. Unless that satisfaction is shown from the assessment order, the ld AO cannot jump to the stage of apportionment by applying Rule 8 D.
As in present case Id AO has considered all the expenses debited in the profit and loss account including depreciation allowance for disallowance u/s 14A of the Act. In view of our finding that the learned assessing officer has failed to record any satisfaction about the correctness of the claim of the assessee, orders of lower authorities are reversed. Therefore, we direct the learned assessing officer to delete the disallowance made under section 14A of the Act. Accordingly, we reverse the order of the lower authorities and allow the appeal of the assessee.
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2021 (12) TMI 1253
Income from house property - recognized basis for determination of the ALV - AO did not accept the declaration of ALV of Greater Kailash-II property as according to him the Municipal Corporation value did not represent the true market value of the property as per the section 23(1)(a) - HELD THAT:- The submission of the assessee that she was declaring income from business/profession during the Assessment Year 2014-15 and 2016-17, could not be controverted by the Ld. DR. - also that because of loss during the year, the same was ignored. Further, it is held in various decisions that municipal lettable value is recognized basis for determination of the ALV.
Identical issue had come up before the Mumbai Bench of the Tribunal in the case of Pankaj Wadhwa [2019 (1) TMI 937 - ITAT MUMBAI] wherein, the Tribunal held that where the assessee declared annual lettable value from house property having regard to municipal rateable value, in view of the fact that municipal rateable value is recognised for determination of ALV, there was no justification for action of Assessing Officer in disregarding the municipal rateable value for determination of ALV and substitution thereof by some expected rent to be received by the assessee.
Since, the assessee in the instant case has declared the deemed income from the ground and first floor on the bases of municipal rateable value and the basement was used for her profession/business activity, therefore, respectfully following the decision of the Mumbai Bench of the Tribunal in the case of Pankaj Wadhwa vs ITO cited (supra), hold that the ld. CIT(A) was not justified in confirming the action of the Assessing Officer - Decided in favour of assessee.
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2021 (12) TMI 1252
Disallowance of setting off of the carried forward loss - return filed beyond the due date specified under subsection (1) of section 139 - It was argued that the delay has happened for the first time in the last 25 years for a situation totally beyond his control. - HELD THAT:- Assessee was not able to enter into the terrace portion of his flat in Vasant Kunj where all his business and financial documents were kept due to the restraint order passed by the court, in my opinion, cannot be a ground to enable the assessee to claim the benefit of set off of carried forward loss of AY 2017-18 since the said return was not filed on or before the specified date. The statute is very clear on this issue that for claiming the benefit of setting off of carried forward loss against the income of the subsequent year, the return for the assessment year in which loss was incurred has to be filed in time as specified u/s 139(1).
If the assessee was prevented from filing the return within the due date, the remedy lies elsewhere, but, definitely not before the Tribunal. Since the assessee, in the instant case, has not filed the return of income for AY 2017-18 within the due date returning the loss of ₹ 8,67,803, therefore, the same cannot be carried forward to the subsequent assessment year to be set off against the income of AY 2018-19. We not find any infirmity in the order of the CIT(A) upholding the intimation issued by the CPC, Bangalore rejecting the claim of set off of carried forward loss of ₹ 8,67,803/- pertaining to AY 2017-18 from the income of AY 2018-19. The order of the CIT(A) is accordingly upheld and the grounds raised by the assessee are dismissed.
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2021 (12) TMI 1251
Delayed payment of employees contribution to Provident Fund (PF) and Employees State Insurance (ESI) - Scope amendment made to section 36(1)(va) by Finance Act 2021 w.e.f. 1.4.2021 and the corresponding amendment made to section 43B by inserting Explanation 5 - HELD THAT:- As per the settled legal principle, delayed payment of contribution to PF and ESI including employee’s contribution, is allowable as deduction under section 43B r.w.s 36(1)(va) of the Act if it is paid before the due date of return of income prescribed under section 139 (1) of the Act. Undisputedly, in the facts of the present appeal the employees’ contribution to PF and ESI were paid before the due date of return of income prescribed under section 139(1) of the Act. However, assessee’s claim has been disallowed by applying the amended provisions of section 36(1)(va) and 43B of the Act.
Though, the amendment to the aforesaid provisions restricting the applicability of section 43B to employee’s contribution to PF and ESI as well as explaining the due date of payment of the aforesaid dues have been brought into the statute by Finance Act 2021 w.e.f. 1.4.2021, however, Commissioner (Appeals) has applied them to the impugned assessment year by stating that the amendments will have retrospective operation as they are clarificatory in nature. However, as find this issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in case of Mr. Vansh Jain vs DCIT [2021 (10) TMI 620 - ITAT DELHI] wherein as held that the amended provisions would apply prospectively w.e.f. assessment year 2021-2022.
Thus as assessee’s claim of deduction has to be allowed. - Decided in favour of assessee.
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2021 (12) TMI 1250
TP adjustment to the Arm’s Length Price (ALP) of business support services - HELD THAT:- Based on materials available on record, we are not in a position to render a conclusive finding that the invoice raised by the assessee on AE also includes mark-up of 12% on business support cost. Thus, in absence of complete details to substantiate the aforesaid claim, we are unable to accept assessee’s claim at this stage - we are of the view that assessee’s claim cannot also be outrightly rejected. In case, the assessee, through a proper working and supporting evidence, establishes on record that all costs incurred by the assessee, whether direct or business support, has been remunerated with mark-up of 12%, no adjustment can be made.
Onus is entirely on the assessee to prove such fact. In view of the aforesaid, to provide an opportunity to the assessee to bring material on record in support of its claim that the invoice raised also includes mark-up of 12% on all types of cost, including business support cost, we restore the issue to the file of learned Commissioner (Appeals) for de novo adjudication after affording due opportunity of being heard to the assessee.
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9911796707
