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Showing 141 to 160 of 18686 Records
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2022 (12) TMI 1424
Reopening of assessment u/s 147 - validity of Order passed u/s 148A(d) and notice u/s 148 - period of limitation - petitioner as pleaded that proceedings were time barred as the window available to the respondent/revenue for issuance of fresh notices under the new regime was available only between 01.04.2021 and 30.06.2021 - Addition u/s 68 - HELD THAT:- Revenue, cannot but accept that insofar as the first aspect is concerned i.e., limitation, the same is covered by the judgment rendered by the coordinate bench in Suman Jeet Agarwal [2022 (9) TMI 1384 - DELHI HIGH COURT]
For second aspect revenue says that there is no specific assertion in the counter-affidavit. Therefore, quite clearly, the department has not taken a stand either way, on the assertion made that the said amount has been taxed in the hands of the creditor.
Thus, for the foregoing reasons we are inclined to set aside the impugned order passed under Section 148A(d) and notice issued u/s 148 of the Act.
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2022 (12) TMI 1423
Validity of reopening of assessment - notice issued u/s 148A(b) - period of limitation - as notice issued u/s 148 is time-barred as issued beyond the window available i.e., between 01.04.2021 and 30.06.2021 as per the provisions of Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 - HELD THAT:- The record shows that on two previous occasions, i.e., 10.10.2022 and 21.11.2022, opportunity was given to Mr Maratha to obtain instructions. Obviously, no instructions have been received by Mr Maratha.
Issue notice. Respondents accepts notice on behalf of the respondents (which includes CBDT/respondent no.3). A counter-affidavit will be filed within three weeks from today.List the matter on 21.07.2023
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2022 (12) TMI 1422
CIT(A) passed ex parte - Levy of penalty u/s 271(1)(c) - Denial of natural justice - Addition of unconfirmed sundry creditors - HELD THAT:- We are of the view that by dismissing the appeal without considering the issue on merits, Learned CIT(A) has failed to follow the mandate required in Sub Section (6) of Section 250 - it is also a well settled principle of natural justice that sufficient opportunity of hearing should be offered to the parties and no parties should be condemned unheard.
We set aside the impugned order of CIT(A) and restore the issue to the file of CIT(A) for re-adjudication of the issue after granting sufficient opportunity of hearing to the assessee and considering the submissions of the assessee - Appeal of the assessee is allowed for statistical purposes.
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2022 (12) TMI 1421
Seeking direction being issued to respondent no. 2 to decide and rule on the petitioner’s application dated 31.03.2021 - case of petitioner is that the reason that the petitioner has been issued the show cause-notice dated 06.12.2022 is inextricably linked to the decision by respondent no. 2 on the aforementioned application - HELD THAT:- The writ petition is disposed of with the direction to respondent no. 2 or any other officer who is assigned with the task to dispose of the petitioner’s application dated 31.03.2021, to dispose of the same within the next six weeks.
The application will disposed of by way of a speaking order.
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2022 (12) TMI 1420
Exemption u/s 11 - objects of the trust or institution and the genuineness of its activities - List on 25th April, 2023 along with CUTTACK DISTRICT TENNIS ASSOCIATION [2023 (4) TMI 1228 - ORISSA HIGH COURT]. In the meantime, defects be removed.
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2022 (12) TMI 1419
Seeking grant of Anticipatory bail - bungling and misappropriation of funds and cheating etc - supply of medicines at exorbitant price, causing huge loss to the Government - HELD THAT:- Looking at the nature of offence and also taking note of the fact that the economic offences constitute/form a different class and while considering the bail application of an accused in such an offence, it is required to be visited differently than the offences under the IPC, this Court does not deem it appropriate to enlarge the accused-applicant on anticipatory bail. This anticipatory bail application is, therefore, rejected.
However, it is provided that if the accused-applicant surrenders and applies for regular bail within seven days from today, the same shall be considered, preferably on the same day, keeping in mind that the accused-applicant was not arrested by the Directorate of Enforcement, invoking the powers under Section 19 of the PMLA during the investigation and he had cooperated with the investigation - Application disposed off.
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2022 (12) TMI 1418
“ESOP” (Employee Stock Options) deduction - not an allowable revenue expenditure u/s.37? - HELD THAT:- As in assessee’s case itself [2022 (9) TMI 239 - ITAT PUNE] involving the preceding twin assessment years 2010-11 and 2011-12, has already rejected the Revenue’s arguments as relying on CIT Vs. Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] - Thus, we see no infirmity in the order passed in allowing the claim of ESOP expenses under section 37(1) of the Act. The ground raised by the Revenue is rejected.
Disallowance of interest income on Non Performing Assets (NPAs) on accrual basis - HELD THAT:- It emerges during the course of hearing that the same is also no more res integra in light of hon’ble jurisdictional high court’s recent common order involving assessment years 2009-10 to 2011-12 in assessee’s case(s) itself [2019 (4) TMI 378 - BOMBAY HIGH COURT] declining the Revenue’s ground held that interest on NPAs cannot be taxed on accrual basis. It was noted that NBFC would be governed by the directions issued by the Reserve Bank of India and RBI directives provided that under certain circumstances, a loan or advance would be treated as NPA. The Court on the real income theory held that such interest would not be taxable. We notice that the decision of the Delhi High Court in case of Vasisth Chay Vyapar Ltd [2010 (11) TMI 88 - DELHI HIGH COURT] was carried in the appeal by the Revenue before the Supreme Court. The Supreme Court in the judgment reported in [2018 (3) TMI 56 - SUPREME COURT] approved the decision of the High Court and dismissed the appeal. Decided against revenue.
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2022 (12) TMI 1417
Alleged detention of the vehicle and excavator - inaction on the part of the respondent WBGST authority concerned in not considering the case made out by the petitioner - Petitioner submits that he is suffering from huge financial loss everyday because of such detention of the vehicle and excavator in question - HELD THAT:- Considering the facts and circumstances of this case and submission of the parties this writ petition is disposed of by directing the respondent authority concerned to consider and dispose of the aforesaid representation by taking a decision in accordance with law and by passing a reasoned and speaking order after giving an opportunity of hearing to the petitioner or his authorised representative within 16th December, 2022 positively.
Petition disposed off.
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2022 (12) TMI 1416
Disallowance u/s 14A r.w.r. 8D - suo motu disallowance made by assessee - HELD THAT:- As decided in Joint Investment [2015 (3) TMI 155 - DELHI HIGH COURT] that such a disallowance ought not to exceed the corresponding exempt income itself. The fact also remains that the assessee’s suo motu disallowance as already exceeds the sum which has nowhere been contested during the course of hearing. We, therefore, direct the AO to restrict the impugned section 14A r.w.r. 8D disallowance to a lump sum figure of Rs. 50,000/- each in both these assessment years
Disallowance of “ESOP” (Employee Stock Options) deduction u/s.37 - HELD THAT:- This tribunal’s very recent order in assessee’s case itself [2022 (9) TMI 239 - ITAT PUNE] rejected the Revenue’s arguments discount on ESOP being a general expense, is an allowable deduction u/s 37(1) of the Act during the years of vesting on basis of percentage of vesting during such period subject to upward or downward adjustment at the time of exercise of option as following case of Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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2022 (12) TMI 1415
Misappropriation of public funds - making false entries in the cash book and misappropriating money - misappropriation and falsification of accounts - sub-section (2) of Section 300 of the CrPC. - HELD THAT:- Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). Sub-section (1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal with the exceptions. Accordingly, so long as an order of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt in with under sub-sections (2) to (5) of the section - Section 300 of the CrPC is based on the maxim nemo deber bis vexari, si costest curiae quod sit pro una et eadem causa which means that a person cannot be tried a second time for an offence which is involved in an offence with which he was previously charged.
The whole basis for this provision is that the first trial should have been before court of competent jurisdiction. There must have been a trial of the accused, that is to say, that there should have been a hearing and determination or adjudication of the case on merits. Where the accused has not been tried and as such convicted or acquitted, Section 300(1) shall not be applicable - Section 300 of the CrPC bars the trial of a person not only for the same offence but also for any other offence on the same facts in Thakur Ram vs. State of Bihar [1965 (11) TMI 161 - SUPREME COURT].
The Trial Court has held that in the present case, the allegation is that after conducting the auction of coconuts and half filled grains, two-thirds of the amount collected from the successful bidder was not remitted to the treasury, however, in the earlier cases, the allegations were that the accused misappropriated some amount to be paid to the proprietor of Agricultural Marketing Corporation, Kozhikode, Kerala State Coir marketing Corporation, Kozhikode from the State Seed Farm, Perambra by forging and falsifying records - it can be said that the present cases pertain to the same set of facts and are in respect of same offences, for the same period, committed in the same capacity as the previous three cases wherein the appellant herein was already prosecuted in the year 1999. The core allegation in all these five cases pertains to misappropriation by making false entries in the cash book. The allegation of the prosecution that two-thirds of the auction amount was not remitted to the treasury would be covered under the allegations of misappropriation of funds, that the appellant has already been prosecuted for in the year 1999. The appellant is right in contending that the charge in the first three cases were framed on 17.08.1999 which is much after the audit and the prosecution would have been well aware of the misappropriation in respect of the present cases on 17.08.1999.
The High Court was not justified in affirming the judgment of conviction and sentence passed by the Trial Court - the Trial Court as well as the High Court were not right in convicting and sentencing the appellant herein and therefore, the impugned judgments are liable to be set aside.
Appeal allowed.
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2022 (12) TMI 1414
Exemption u/s 11(1) and 11(2) - exemption denied merely on the ground of belated filing of Audit Report in Form 10B - whether Tribunal was right in confirming the order of the respondent in denying the claim of exemptions more so when such audit report was admittedly filed electronically well before the order denying such exemptions came to be passed ? - Whether the order passed by the Income Tax Appellate Tribunal is perverse inasmuch as the same is contrary to law laid down by the Hon’ble the jurisdictional High Court or not following the binding judgements of Hon’ble the jurisdictional High Court ?
HELD THAT:- Appeal admitted on substantial questions of law raised before this Court - Notice for final disposal, returnable on 13/12/2022.
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2022 (12) TMI 1413
Classification of goods proposed to be imported - Roasted Areca Nuts - to be classifiable under CTH 2008 19 20 of the Customs Tariff Act, 1975 or not - HELD THAT:- The processes mentioned in Chapter 8 include chilling, steaming, boiling, drying and provisionally preserving. It does not specifically include the process of roasting. Here it is important to understand the difference between the processes of drying and roasting. The terms, however, are not defined in the Customs Tariff Act, 1975. Therefore, these terms have to be understood in a commonly accepted sense.
The Hon'ble Apex Court in the case of Alladi Venkateswarlu v. Government of Andhra Pradesh [1978 (2) TMI 184 - SUPREME COURT] held that "the commonly accepted sense of a term should prevail in construing the description of an article of food". In common trade parlance, "drying" is a method of food preservation by the removal of water. On the other hand, "roasting" means the excess or very high heat treatment that produces fundamental chemical and physical changes in the structure and composition of the goods, bringing about a charred physical appearance. Therefore, drying is a moisture removal process involving methods such as dehydration, evaporation, etc., whereas roasting is a severe heat treatment process.
The impugned goods i.e. roasted betel nuts, find specific reference in the chapter 20 of the schedule I of the Customs Tariff Act 1975 as well as corresponding HSN Explanatory Note. It is important to pay attention to the fact that in the above explanatory note a process of roasting is not specifically mentioned as a process of preservation or stabilisation or a process to improve or maintain the appearance. This corroborates the finding that the process of roasting is not covered by Note 3 to Chapter 8 and hence these products, roasted betel nuts — complete as well as cut — are not classifiable under chapter 8 of the Tariff.
The relevance of Chapter 21 is already discussed in para 5.1. Supplementary note 2 to Chapter 21 states that in this Chapter "betel nut product known as Supari " means any preparation containing betel nuts, but not containing any one or more of the following ingredients, namely: lime, Katha (catechu) and tobacco whether or not containing any other ingredients, such as cardamom, copra or menthol. Betel nut product known as "Supari" is mentioned in Subheading 21069030. Heading 2106 covers food preparations not elsewhere specified or included. Those food preparations not specified or included elsewhere in the tariff being preparations for human consumption are to be classified under this heading. Therefore, it appears that it is a residuary entry in respect of edible food preparations. As a result, edible preparations shall be classified under this entry only if the same is not classifiable under any of the other specific entries for edible preparations. As the goods under consideration are already included in Heading 2008 of the Customs Tariff Act, 1975, they stand excluded from the scope of Chapter 21.
Roasted Areca Nuts — whole as well as cut - merit classification under Heading 2008 and specifically under subheading 2008 19 20 of the First Schedule of the Customs Tariff Act, 1975.
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2022 (12) TMI 1412
TP adjustment - Exclusion of subcontracting charges - determination of net cost margin excluding the sub-contract charges is decided against the assessee by coordinate bench of this Tribunal in assessee's own case for the AY 2011-12 [2016 (9) TMI 1458 - ITAT BANGALORE].
Comparable selection - directions to the AO/TPO to apply 15% RPT filter - We direct exclusion of Larsen & Tubro Ltd., Persistant systems Ltd., RS Software (India) Ltd., and Infosys Ltd., from the final list.
Interest on receivables - TPO proposed transfer pricing adjustment in respect of outstanding receivables in respect of trade creditors being the AEs by using 6 months LIBOR + 450 basis points and CUP as the most appropriate method - HELD THAT:- This Bench referred to decision of Special Bench of this Tribunal in case Instrumentation Corpn. Ltd. [2016 (7) TMI 760 - ITAT KOLKATA] held that outstanding sum of invoices is akin to loan advanced by assessee to foreign AE., hence it is an international transaction as per explanation to section 92 B of the Act
We deem it appropriate to set aside the impugned order on this issue and remit the matter to the file of the Ld.AO/TPO for deciding it in conformity with the above referred judgment. We also direct the Ld.TPO that in the event the WCA subsumes the outstanding receivables, no separate characterisation is to be made. For those receivables that fall out of the WCA pertaining to year under consideration, then, the rate of interest to be charged must be LIBOR + 300 basis points which is in accordance with the principles laid down in case of CIT vs. Cotton Naturals (I) Pvt. Ltd. [2015 (3) TMI 1031 - DELHI HIGH COURT] by considering a credit of 90 days.
Disallowance u/s. 40(a)(ia) - salary cost reimbursed to Applied Material Inc. on an ‘at cost’ basis - non-deduction of TDS on reimbursement of salary expenses made on behalf of the seconded employees as fee for technical services - HELD THAT:- We remand this issue to the Ld.AO to consider the claim in accordance with the decision of M/s. Flipkart Internet Pvt. Ltd. [2022 (6) TMI 1251 - KARNATAKA HIGH COURT] and M/s. Toyota Boshoku Automotive India Pvt. Ltd. [2022 (4) TMI 1443 - ITAT BANGALORE], Goldman Sachs Services Pvt. Ltd. [2022 (4) TMI 1444 - ITAT BANGALORE] having regard to the evidences filed by the assessee. Needless to say that proper opportunity of being heard must be granted to assessee in accordance with law. On verification once it is ascertained that the assessee has deducted tax on the entire salary payable to the seconded employee u/s 192 of the act, no disallowance is warranted under section 40(a) (i) of the act.
Denial of depreciation claimed on leasehold improvements - Assessee failed to submit documentary proof/ evidences substantiating the date of ‘put to use’ of assets for leasehold improvements acquired during FY 2014-15 - HELD THAT:- Both sides submits that the facts of the issue in the present year is identical with that of A.Y. 2014-15 [2022 (6) TMI 1357 - ITAT BANGALORE]. We therefore direct the Ld.AO to verify the additions made to the asset during the year under consideration based on the evidences filed by assessee for determining the disallowance in accordance with law.
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2022 (12) TMI 1411
Appointment of Interim Resolution Professional - HELD THAT:- Learned senior counsel has referred to the proceedings dated 08.08.2022, wherein Mr. B.C. Bhandari of SREI Infrastructure Finance Ltd. appeared in those proceedings. It is further submitted that while hearing the arguments, before passing the impugned order, this fact was brought to notice of NCLT, Chandigarh that proceedings are already pending before NCLT, Mumbai Bench with regard to framing of a scheme for the purpose of ascertaining the claim of the creditors and said case is now listed for 25.01.2023. It is also submitted that there is every possibility that the entire settlement may be arrived in those proceedings.
Notice of motion for 07.02.2023.
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2022 (12) TMI 1410
Special Audit u/s 142(2A) - assessee is against appointment of Special Auditor u/s. 142(2A) - HELD THAT:- Facts on records clearly indicate that the AO without even examining the accounts of the assessee has formed an opinion regarding nature and complexity of the accounts of the assessee. This opinion has been formed by the AO in a very casual manner. Without examining the books of account the AO can have no understanding of the nature and complexity of the accounts of the assessee.
We are unable to impress upon ourselves to subscribe to the view of AO to hold nature of accounts of the assessee as complex, without even having a look at the books of assessee.
Hon’ble Apex Court in Sahara India [2008 (4) TMI 4 - SUPREME COURT] has held that there has to be a genuine and honest attempt on the part of Assessing Officer to understand accounts of the assessee. The contention of the Revenue is that the assessee is non-co-operative and did not produce books, under such circumstances, AO could have resorted to any other relevant provision available under the Act to complete the assessment but reference to Special Audit. The satisfaction of the Assessing Officer in the instant case is at the outset, shallow, flawed and unsustainable.
Whether the assessment u/s.143(3) r.w.s 153C of the Act is time barred? - In the instant case it is undisputed that seized documents were handed over to the AO on 17/11/2011. Therefore, the assessment should have been completed on or before 31/03/2013, whereas, the assessment order was passed on 14/11/2013, hence, clearly beyond the period of limitation as specified u/s. 153B - The extended time for completing assessment would have been available to the AO if reference to Special Auditor was held to be valid. As a sequitur to our findings on reference to Special Auditor, we hold the assessment order time barred, ergo, liable to be quashed.
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2022 (12) TMI 1409
Maintainability of appeal - appeal dismissed on the ground of delay of more than four months in addition to the period granted by the judgment of the Hon’ble Supreme Court during the COVID period - HELD THAT:- There is no cogent and proper explanation of delay in filing the appeal of more than 200 days. The medical documents, the petitioner has annexed, are self-contradictory. Prescription annexed has been issued by one doctor, medical certificate has been given by another doctor who is a general practitioner and diagonised that petitioner was suffering from pulmonary disease while the prescription annexed shows that the petitioner was suffering from skin diseases and such prescription has been issued by the Dermatologist.
Petition dismissed.
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2022 (12) TMI 1408
Levy of penalty - payment of redemption fine missed out - dispute under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 already settled - present Appellant is the Director of the company - HELD THAT:- On perusal of the Order-in-Original it is noticed that negligence in general is attributed to the conduct of the present Appellant. This being the allegations and having regard to the fact that the present Appellant’s declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 having been given a lawful consideration, he would have paid nil penalty in view of the relief available to him under Section 124(i)(b) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules 2019, we are of the considered view that even after failure on the part of the Appellant to avail the benefits of the scheme in its totality in view of Board Circular No. 1071/4/2019- CX.8 dated 27.08.2019 and consistent decisions of this Tribunal, two of which are P.B. VYAS VERSUS COMMR. OF CENTRAL EXCISE, MUMBAI-III [2021 (3) TMI 1305 - CESTAT MUMBAI] and M/S EXOTICA HOUSING PVT. LIMITED VERSUS COMMISSIONER, CENTRAL EXCISE, CUSTOMS, GOODS AND SERVICE TAX, NEW DELHI. [2020 (2) TMI 1697 - CESTAT NEW DELHI].
The order of penalty imposed by the Commissioner (Appeals) in respect of the present Appellant is set aside - Appeal allowed.
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2022 (12) TMI 1407
Seeking grant of bail - availment of fraudulent input tax credit - evasion of tax - HELD THAT:- It is an admitted position that petitioners had evaded the tax and got the benefit of input tax credit of Rs. 11.30 Crores. Hon’ble Apex Court while granting the bail to Vinay Kant Ameta directed to him to deposit Rs. 200 Crores.
Considering the contentions put-forth by the counsel for the petitioners and taking into account the facts and circumstances of the case and without expressing any opinion on the merits of the case, this court deems it just and proper to enlarge the petitioners on bail with a condition to deposit Rs. 2 Crores each by the petitioners before the respondent Department as under protest.
The bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners Saurabh Jindal S/o Shri Satyendra Kumar and Yashik Jindal S/o Shri Mahadev Jindal shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs. 50,000/- with two sureties of Rs. 25,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so.
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2022 (12) TMI 1406
Penalty u/s 271(1)(c) - addition of interest on deposits in HSBC account and addition on account of difference in interest income disclosed in return - HELD THAT:- Tribunal has deleted the addition [2022 (8) TMI 950 - ITAT DEHRADUN] in the quantum proceedings and remanded the matter to the file of the A.O. We are of the opinion that the present penalty proceedings and penalty order made thereon deserves to be deleted. Accordingly, the penalty order passed in the years under consideration is hereby deleted. Appeals filed by the assessee are allowed.
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2022 (12) TMI 1405
Penalty u/s 272A(1)(d) - non-complying with the notice u/s 142(1) - HELD THAT:- We find that on receipt of notice u/s 142(1) dated 05.09.2019, the appellant sought time for 15 days to file the required details and the requisite details were filed on 04.11.2019.
When the appellant sought time to file the details, the said application was not disposed of by the Assessing Officer either rejecting the said application or granting time.Ultimately the assessment was completed by the Assessing Officer u/s 143(3) of the Act accepting the returned income.
Thus, it will conclusively prove that no prejudice was caused to the AO on account of non-complying with the notice u/s 142(1) issued on 05.09.2019 and inaction of the Assessing Officer on the adjournment petition moved by the assessee would also enable the appellant to believe that the time to comply with the extension of time as prayed was granted.
It cannot be said that the appellant is guilty of contumacious conduct to comply with the notice u/s 142(1) of the Act. Thus, it is not a fit case for levy of penalty u/s 272A(1)(d) - Decided in favour of assessee.
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