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Showing 101 to 120 of 1752 Records
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2016 (11) TMI 1657 - ITAT MUMBAI
Revision u/s 263 - assessment made by AO is set-aside with the directions to the Assessing Officer to complete the assessment afresh by taxing interest income earned by its units entitled for deduction u/s.80IC, under the head “Income from other sources”- HELD THAT:- It is not a case of a total set aside of assessment, but to a limited extent, so that it has to be modified to the stated extent only. The AO in the revised assessment is to interfere with the assessment only to the stated extent and, further, in doing so is only giving effect to the said directions by the ld. CIT. Clause (c) of Explanation 1 to section 263(1) is, again, specific, excluding parallel exercise of jurisdiction by the Administrative and the Appellant Commissioner. Once, therefore, the ld. CIT has, in exercise of his power of revision, held the interest income as assessable under section 56, the matter cannot be re-agitated before or revisited by the Appellant Commissioner, whose view is thus in accordance with the clear mandate of law. Reference in this context, explaining the clear position of law, may be made to the decision in the case of CIT v. Shri Arbuda Mills Ltd. [1996 (1) TMI 11 - SUPREME COURT] being in fact clarified, in a similar fact situation, in the case of Herdillia Chemicals Ltd. (1995 (12) TMI 411 - BOMBAY HIGH COURT), so that the matter can only be said to be no longer res integra, being squarely covered by both, the clear position of law as well as said binding decisions. This is precisely the reason for our stating, at the outset, of the assessee as having no case. The assessee’s appeal having been upheld by us as not maintainable, the question of adjudicating its grounds assailing the assessment on merits does not arise.
Order u/s.263 filed only on 03.09.2015 which is time barred by 458 days - In our clear view, even as expressed during hearing, the assessee had clearly, and presumably, only on the basis of a legal opinion, taken a conscious decision not appeal against the revision order, passed with reference to and relying on several decisions, including by the Apex Court. No reasonable, much less sufficient, cause has been advanced for condonation of delay
We have already expressed that the impugned order stands passed relying on several decisions, including by the Apex Court. The assessee could not make out a prima facie case, i.e., on the merits of the impugned directions issued by the ld. CIT, before us, with we on the contrary observing the assessee to have taken a conscious decision accepting the same. The said decision would thus also have no application in the present case. The instant appeal is not maintainable, and is accordingly dismissed. We decide accordingly.
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2016 (11) TMI 1656 - ITAT INDORE
Addition on account of long-term capital gain - Sale of a residential house - Interest in property - Section 50C applicability - assessee had transferred the land and building, which was under his possession as mentioned in the sale deed HELD THAT:- Since the assessee has transferred his interest in the land and building under consideration, therefore, consideration arising out of such transfer is definitely chargeable under the provisions of Income-tax Act, 1961. In the aforesaid case, by declaring sale as null and void, the land remained in the possession of the owner, who had transferred the said land in defiance of the statutory provisions, whereas in the case of the assessee, he has transferred his ownership and by virtue of Court’s order dated 01.03.2013, the assessee has not remained the owner of the land and building, but already received consideration in respect of the property. Since the underlined asset transferred is being land and building, therefore, provision of Section 50C are very much applicable. In view of these facts, we are of the considered opinion that the AO and ld. CIT(A) have justified in their action, hence, no interference on our part is required.
Taking cost of the market value of the property as on 01.04.1981 in place of cost of acquisition while computing the capital gain - HELD THAT:- AO has considered the indexation cost of acquisition at ₹ 40,920/- as against actual cost of ₹ 6,000/- while computing the capital gains. Therefore, we are of the view that the benefit of indexation has already been allowed by the AO. Hence, this ground of appeal is rejected.
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2016 (11) TMI 1655 - ITAT INDORE
Revision u/s 263 - HELD THAT:- There was no occasion for the Assessing Officer to make any inquiry and the Assessing Officer accepted the return without proper inquiry as a result of which substantial amount of taxable income was not brought to tax. We also hold that no rule of universal application can be laid down for exercise of revisional powers u/s 263 of the act. It will depend on the facts of each and every case but the Commissioner of Income Tax must be satisfied of existence of twin conditions that the order of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. - Decided against assessee.
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2016 (11) TMI 1654 - SC ORDER
Constitutional validity of Rule 8(3A) of the Central Excise Rules, 2002 - Violation of Article 14 - HELD THAT:- Issue Notice.
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2016 (11) TMI 1653 - ITAT DELHI
TP Adjustment on account of AMP expenses - International transaction - HELD THAT:- On perusal of the order of the TPO, it emerges that while holding the AMP expenses to be an international transaction, he did not have the benefit of the judicial precedents now available for consideration, in some of which the transaction of AMP has been held as an international transaction, in others as not an international transactions, while still in some others, the matter has been restored for fresh consideration in the light of the judgment in Sony Ericsson [2015 (3) TMI 580 - DELHI HIGH COURT] in which the AMP expenses as an international transaction has been accepted.
Respectfully following the predominant view of the Hon’ble High Court, we are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to the file of TPO/AO for a fresh determination of the question as to whether there exists an international transaction of AMP expenses. If the existence of such an international transaction is not proved, the matter would end there and then, calling for no transfer pricing addition. If, on the other hand, the international transaction is found to be existing, then the TPO would determine the ALP of such an international transaction in the light of the relevant judgments of the Hon’ble High Court, after allowing a reasonable opportunity of being heard to the assessee.
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2016 (11) TMI 1652 - ITAT KOLKATA
Disallowance u/s. 14A - whether the disallowance u/s. 14A could exceed the exempt income derived by the assessee? - HELD THAT:- Provisions of section 14A of the Act are very clear in considering expenditure which were incurred for earning any income which do not form part of total income. So going by the plain language of the section it could be safely concluded that the legislature intended only to disallow the expenditure that were incurred for earning exempt income. The legislature never intended to disallow the expenditure which is more than the exempt income derived by the assessee.
We also draw support from the decision of the Hon’ble Delhi High Court in the case of Joint Investments Pvt. Ltd. Vs. CIT [2015 (3) TMI 155 - DELHI HIGH COURT] wherein it has been held that the disallowance u/s. 14A of the Act cannot exceed the exempt income. Respectfully following the said decision, we direct the AO to restrict the disallowance u/s. 14A of the Act to ₹ 102/- and allow the ground of appeal raised by the assessee. Appeal of the assessee is allowed.
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2016 (11) TMI 1651 - ITAT CHENNAI
Income accrued in India - receipts of the assessee from DSSPL towards sale of software products - deeming provisions under section 9(1)(vi) - DTAA between India and USA - HELD THAT:- It is not disputed by the Revenue that payments received by the assessee from DSSPL were based on same regional support agreements between assessee and DSSPL which was considered by the Co-ordinate Bench of this Tribunal in [2011 (9) TMI 207 - ITAT, CHENNAI] . So the payments received by the assessee during the relevant assessment year from DSSPL was of the same nature as what were received by it from the said concern in the previous year relevant to assessment years 2002-03 to 2006-2007. In its order dated 16.09.2011, this Tribunal had followed the decision of Special Bench in the case of Motorala Inc. vs. DCIT [2005 (6) TMI 226 - ITAT DELHI-A]
Co-ordinate Bench had in its orders for the earlier years relied on the DTAA between India and USA for construing the meaning of the term Royalty which was available in Article 12(3). It is not disputed that the said definition had not undergone any change despite the amendment to Sec. 9(1)(vi) brought in through Finance Act, 2012. It is trite law that an assessee can fall back on the DTA when it is more advantageous to it. Hon’ble Delhi High Court in the case of Infrasoft Ltd [2013 (11) TMI 1382 - DELHI HIGH COURT] had clearly held that subsequent amendment to Sec. 9(1)(vi) of the Act in so far as it relates to definition of Royalty was not relevant when an assessee relied on DTAA provisions which were more beneficial to it. In the circumstances, following decisions of Co-ordinate Bench of earlier years, we are of the opinion that the receipts of the assessee from DSSPL could not have been considered as Royalty in the hands of the assessee liable for taxation in India. Addition made stands deleted. - Decided in favour of assessee
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2016 (11) TMI 1650 - ITAT BANGALORE
Disallowance of expenditure - Income is taxed out information arising out of seized material - HELD THAT:- Details were furnished regarding expenses of ₹ 35.00 lakhs before the AO and the ld. CIT(A) also. The claim of expenses of ₹ 35.00 lakhs is against unaccounted receipts as per the same seized material of ₹ 156.12 lakhs as noted by the CIT (A) in para-3 reproduced above. This is not the case of AO that this claim of the assessee regarding expenses of ₹ 35.00 lakhs against unaccounted receipt of ₹ 156.00 lakhs is excessive or unreasonable.
The objection is regarding supporting evidence. Un-accounted expenditure, supporting evidences may not be available in most of the cases but since the expenses are noted in the same seized material as per which the receipt is being taxed of ₹ 156.00 lakhs and the claim of such expenses is not excessive and unreasonable and no specific defect has been pointed out by the authorities below in the claim except asking for supporting evidence, we are of the considered opinion, that the assessee was able to establish the incurring of expenditure by way of notings in the seized material and furnishing of the details of the expenses item wise and this is not the case of the revenue that such details are not as per the notings in the seized material. Hence, we delete this disallowance. Accordingly, ground no.2 to 4 are allowed.
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2016 (11) TMI 1649 - ITAT AHMEDABAD
Reopening of assessment u/s 147 - assessee had not filed his return for the impugned assessment year - HELD THAT:- Order dated 09.02.2015 disposing of assessee’s objection to reopening reads that the said return had not been filed u/s.139(1) - CIT(A) on the other hand is of the view that the said return was not filed with the Assessing Officer issuing Section 148 notice. The fact however remains that the filing of assessee’s return in question is not otherwise in dispute.
We put up a specific query to Ld. Departmental Representative to prove that assessee’s residential status or his ward is different in the above stated return or in Section 148 notice or in reassessment. He could not point out such difference. It has further come on record that assessee had also received acknowledgement of his return from department’s end forming part of the paper book.
We quote hon’ble jurisdictional high court in Manish Kumar Pravinbhai Kiri vs. ACIT 2016 (1) TMI 787 - GUJARAT HIGH COURT holding that the only reason of non filing of return forming basis of the impugned reopening in such circumstances stands belied. We thus accept assessee’s challenge to validity of the reopening and conclude that the Assessing Officer’s above stated reasoning goes contrary to the record. The same is accordingly quashed rendering assessee’s other ground on merits as infructuous.
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2016 (11) TMI 1648 - SC ORDER
TPA - AMP expenses - existence of an international transaction - whether advertising, marketing and promotion expenses (‘AMP’) incurred by the Assessee can be said to be incurred not only for the benefit of the Assessee but also by way of rendering the services of promoting the brand of the foreign associated enterprise (‘AE’) namely B&L, USA? - Existence of an international transaction - re-characterization of its transaction involving its AE for the two years - HELD THAT:- Delay condoned. Leave granted.
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2016 (11) TMI 1647 - BOMBAY HIGH COURT
TP Adjustment - notional interest on delayed collection of consideration on sale of goods to Associated Enterprises - Associated Enterprises to whom the sales were made got on an average a longer period for payment of the sale proceeds as compared to the Non-Associated Enterprises - HELD THAT- Tribunal by the impugned order rendered a finding of fact that the respondentassessee has not charged any interest from third parties i.e. Non Associated Enterprises on delayed payments exceeding more than 300 to 400 days from the sale of goods. Consequently, it holds that once such delayed payment in respect of sale of goods made to third parties carries no interest, then adding of notional interest to delayed payments made by the Associated Enterprises is not called for.
As placed reliance upon the order in M/s.Indo Amercian Jewellery Ltd. [2013 (1) TMI 804 - BOMBAY HIGH COURT] wherein similar question was not entertained by this Court on the ground that there is complete uniformity in the act of the assessee therein in not charging interest from Associated Enterprises and Non Associated Enterprises for delay in recovery of its sale proceeds.
In the present case also the Tribunal has rendered a finding of fact that the interest is not being charged in case of sales made to Non-Associated Enterprises for delayed payment just as in the case of Associated Enterprises. These finding of fact rendered by the Tribunal is not shown to be perverse in any manner. No substantial question of law
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2016 (11) TMI 1646 - ITATJAIPUR
Eligibility for deduction u/s 54B - whether the AO was justified in adopting the indexed cost of acquisition as per the value of DG Stamps ? - HELD THAT:- As the particular property in question has its own location and other parameter as very important mentioned in the above parameter of factor affecting the valuation report, hence increasing it by 10% cumulatively upto 1981, which becomes ₹ 21.43 per sq.mts for the year 1991. Hence he adopted the land value at ₹ 3,36,451/-. AO has adopted the rate on the basis of sale deed registered with the Stamp Valuation Authority situated in the nearby area. The law is well settled that the DG Stamps valuation would not be a proper indicator for ascertaining the Fair Market Value. However, the registered valuer has applied the rate as per the Circular issued by the Government of Rajasthan. Such valuation ought not to have been set aside without referring the matter to the DVO as per section 55A(a) of the Act. Therefore, we set aside the order of the AO on this issue and direct the AO to adopt the valuation as reported by the Registered valuer at ₹ 3,36,451/-. This issue is decided in favour of the assessee and against the revenue.
Entitled for indexed cost of improvement - AO has not allowed the indexed cost of improvement on the basis that no evidence has been furnished - HELD THAT:- No direct evidence with regard to the expenditure is placed on the record demonstrating the incurrence of the expenditure. But the fact that in the agricultural land such expenditures are incurred in the course of time. This fact cannot be lost sight of. Therefore, after considering the facts, we allow 50% of the indexed cost of improvement as claimed by the assessee being the reasonable expenditure incurred by the agriculturist on the improvement of the land. The assessee gets relief of ₹ 6,52,398/-. This ground of the assessee is partly allowed.
Claim of deduction u/s 54B for making investment in the agricultural land in the name of the wife - HELD THAT:- As decided in KALYA VERSUS COMMISSIONER OF INCOME-TAX [2012 (6) TMI 239 - RAJASTHAN HIGH COURT] the word assessee used in the Income Tax Act needs to be given a ‘legal interpretation’ and not a ‘liberal interpretation’, as contended by the learned counsel for the appellant. If the word ‘assessee’ is given a liberal interpretation, it would be tantamount to giving a free hand to the assessee and his legal heirs and it shall curtail the revenue of the Government, which the law does not permit - decided against assessee
Not allowing the deduction u/s 54F - HELD THAT:- Section requires the assessee to acquire a ‘residential house’ and so long as the assessee acquires a building, which may be constructed, in such a manner as to consist of several units which can, if the need arises, be conveniently and independently used as an independent residence, the requirement of the section should be taken to have been satisfied. Fact that the residential house consists of several independent units cannot be permitted to act as an impediment to the allowance of exemption u/s 54/54F - In the case in hand, out of the sale consideration the assessee purchased a residential house for ₹ 41 lacs on 31.12.2005 adjoining to the existing house. Thereafter the existing house was demolished and a new house was reconstructed so that the house purchased and house reconstructed would meet the requirement of the family. This fact is not rebutted by the revenue by placing any contrary material on record. Therefore, by following the ratio laid down in the case of CIT vs. Syed Ali Adil [2013 (6) TMI 278 - ANDHRA PRADESH HIGH COURT] and Gita Duggal vs. CIT [2013 (3) TMI 101 - DELHI HIGH COURT] we hereby direct the AO to allow the claim of deduction under section 54F
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2016 (11) TMI 1645 - ITAT AHMEDABAD
Disallowance u/s 80IA(iv) - selection of initial year out of the block of 15 years - HELD THAT:- As far as selection of initial year is concerned, the Board has already clarified this issue in Circular no.1/2016. This discretion is with the assessee to select any initial year. It is the discretion of the assessee to opt any 10 years. Once the assessee has opted initial year, then it has to claim deduction under section 80IA consecutively for 10 years.
The approach of the AO to construe that initial year ought to be selected from the year of manufacturing, was not approved by the Board. Considering all these aspects, we do not see any reason to interfere in the order of the ld.CIT(A). Accordingly, the appeal of the Revenue is dismissed.
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2016 (11) TMI 1644 - CESTAT CHENNAI
CENVAT Credit - cost of warranty - HELD THAT:- Once the warranty has a contractual obligation, meeting the cost of warranty by the appellant suffering service tax should not disentitle to the Cenvat credit - Appeal allowed.
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2016 (11) TMI 1643 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Trigger date of Unpublished Price Sensitive Information (‘UPSI’) - whether the company failed to keep the trading window of its scrip closed during the period when UPSI was in force? - whether this enabled some of the Promoter-Directors and some other entities to share the UPSI with other entities and/or trade in the shares of Shelter Infra Projects Ltd. thereby violating relevant provisions of securities laws? - HELD THAT:- Draft SPA did not specify the price at which the shares were to be sold, cannot be a ground to hold that there was no UPSI on June 19, 2009, because, in the present case, the price fixed was a negotiated price and in the facts of present case, it is reasonable to hold that it is only after arriving at the negotiated price, the draft SPA was forwarded on June 20, 2009, however, the negotiated price was not disclosed in the draft SPA. Admittedly, the promoter-directors and their relatives and other connected entities started dealing in the shares from June 22, 2009. In these circumstances, even if it is held that the UPSI came into existence on 19th June, 2009 and not with effect from 21st May, 2009 as held by the AO, in the facts of present case, no fault can be found with the decision of AO, because, it is only from 22nd June, 2009 the directors, their relatives and connected entities sought to deal in the shares of the target company on the basis of UPSI which came into existence on 19th June, 2009.
Since the existence of UPSI from 19th June, 2009 cannot be doubted, it was the duty of the company (Shelter Infra) to keep the trading window closed till the date of announcement of public offer on 7th August, 2009. Since this has not been done, the Company is in violation of the relevant provisions of Listing Agreement and the PIT Regulations.
Accordingly, the penalty of ₹ 50 lakh imposed on the company for not closing the trading window cannot be faulted. It was contended by the Counsel for the company that the delay in disclosing the board decision to the Stock Exchange, is attributable to the Compliance Officer and the directors of the company. It is submitted that since the promoter-directors of the company have been exonerated vide order of the AO of SEBI dated 28th June, 2013,in the present case, the company cannot be made liable. We see no merit in the above contention.
Overall responsibility of the company and the board of directors to ensure that the Code of Conduct is followed in letter and spirit. In our opinion, the AO was not justified in holding the Compliance Officer alone was responsible for closing the trading window and disclosing the Board resolution to the Stock Exchange. Therefore, fact that the AO has erroneously held that the directors are not liable cannot be a ground to hold that the company must also escape penal liability for failing to close the trading window during the existence of UPSI and failing to make disclosures to the Stock Exchange within the stipulated time.
Argument of the Counsel for the company that penalty of ₹ 50 lakh imposed under Section 23A(a) of SCRA is unreasonably excessive deserves acceptance. According to the Counsel for the appellant, there was only delay of 7 days i.e. from 30th July, 2009 to 7th August, 2009 when public announcement relating to the public offer was made. Though, respondent has stated that the public announcement cannot be treated as disclosure, in the peculiar facts of present case, where the company already has suffered penalty of ₹ 50 lakh on account of failure of Compliance Officer/directors to close the trading window and since the directors have been exonerated, it would be just and proper to restrict the penalty till the public announcement was made. Penalty under Section 23A(a) of SCRA for 7 days delay at the rate of ₹ 1 lakh per day would be ₹ 7 lakh. Accordingly, while sustaining the penalty of ₹ 50 lakh imposed under Section 15HB of the SEBI Act for not closing the trading window, we reduce the penalty of ₹ 50 lakh imposed under Section 23A(a) of the SCRA to ₹ 7 lakh for not disclosing the Board resolution to the Stock Exchange.
Whether appellant was an insider? - Admittedly, trades were executed by the appellant on 3rd July, 2009 i.e. during the subsistence of UPSI. The argument made by the Counsel for the appellant that she did not sell the shares bought on 3rd July, 2009 and as such did not benefit from the UPSI even assuming that if she was privy to the UPSI is also without any merit. Under the relevant regulations trading in the shares of the company (whether buy or sell) by an insider is prohibited. On the ground taken by the appellant that the penalty of ₹ 1 crore imposed is too harsh, we note that in other penalty orders in Appeal Nos.120 and 143 of 2014, penalty imposed on each person comes in the range of ₹ 20-30 lakh. Further, given that the appellant is an old lady who depended on her husband and the then Compliance Officer Mr. Surana and the fact that both have expired, we deem it proper to reduce the penalty from ₹ 1 crore imposed in the impugned order to ₹ 30 lakh.
Very fact that the director of Shelter Infra was a business partner of the Parekh Group and that the Parekh Group traded in the shares of Shelter Infra for the first time after the UPSI came into existence, is sufficient to hold that UPSI was the reason for the appellants to trade in the shares of Shelter Infra. Accordingly, there is no reason to interfere with the AO’s order in both these appeals.
The argument that the appellants were not privy to the UPSI and had authorized the Chairman of Shelter Infra to negotiate in respect of their shares without being privy to the UPSI cannot be sustained since it is conclusively proved that UPSI was in existence from 19th June, 2009. Further, argument that the appellant no.1 did not sell shares which he bought during July, 2009 in the open offer or that the appellant no.2 did not sell the shares even during the open offer period do not absolve the appellants from being penalized for violating the PIT Regulations. Hence, the penalty of ₹ 30 lakh imposed on the appellant no.1 for two violations (code of conduct and PIT regulations) and ₹ 20 lakh imposed on appellant no.2 for one violation (PIT regulations) in the impugned order cannot be said to be unreasonable or excessively harsh.
In these appeals before us, it is established beyond doubt that UPSI came into existence at least on 19th June, 2009. All the directors and their relatives are covered under the definition of “insider”. The Parekh Group having business dealings and partners in business concern with an insider are covered under connected people. Passing on the information needs to be judged from the context and in the instant context it is not disputed that the Parekh Group started trading from 22nd June, 2009 after the UPSI came into existence. Thus, the company, its directors and their relatives and connected entities are guilty of violating the provisions of the securities laws, they are liable for action under the SEBI Act and/or SCRA.
Appellants in all these appeals are directed to pay the penalty amount within a period of 45 days from today to SEBI. If the amount of penalty is not paid within a period of 45 days from today, SEBI is at liberty to recover the penalty with interest at 12% per annum from the date of the orders impugned in the respective appeals till payment.
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2016 (11) TMI 1642 - ITAT DELHI
Addition u/s 40A(2)(b) - payment to the persons specified - HELD THAT:- It is clear that the disallowance under this section is made in respect of the expenses incurred or payments made which are not deductible. This section has no application to income aspect of the assessee. AO has made disallowance u/s 40A(2)(b) in respect of income which the assessee in his opinion ought to have earned rather than certain expenses incurred, the provisions of this section are not attracted. Therefore, uphold the impugned order on this score deleting the disallowance. - Decided against revenue.
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2016 (11) TMI 1641 - RAJASTHAN HIGH COURT
Addition on account of higher rate of profit - both the authorities have increased the net profit rate from 10% to 11.5% - HELD THAT:- Taking into account the previous year the assessee's assessment was accepted at 10% G.P. No reasons are adopted by the Tribunal raise the net profit from 10% to 11.5%. In that view of the matter, the first issue is answered in favour of the assessee.
Tribunal holding that while arriving at net profit rate, salary paid to Managing Director would not be allowed as a deduction to the appellant - HELD THAT:- The Tribunal has considered the application of net profit rate as 11.5% and not 10%, in our opinion the net profit rate has to be assessed at 10%. No other expenses are allowed.
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2016 (11) TMI 1640 - SC ORDER
Legislative competence for Levy of service tax on preferential location charges while Purchasing a FLAT in the multi-storey group housing project - it was held in the case that no service tax under section 66 of the Act read with Section 65(105)(zzzh) of the Act could be charged in respect of composite contracts such as the ones entered into by the Petitioners with the builder.
HELD THAT:- Delay condoned - leave granted.
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2016 (11) TMI 1639 - KERALA HIGH COURT
Condonation of delay - reasons for delay - HELD THAT:- Petition for condonation of delay of 554 days is dismissed.
Consequently, the appeal is also dismissed.
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2016 (11) TMI 1638 - ITAT BANGALORE
Condonation of delay - delay of 169 days in filing the appeal - assessee has submitted that the appeal of the assessee was dismissed exparte because of the tax consultant of the assessee failed to appear and he was under bona fide belief that the representative of the assessee will take care of the tax matter - HELD THAT:- Assessee is an individual and it appears to be the first experience with the tax matter. The explanation of the assessee has to be analysed in the context whether the reasons for delay as explained by the assessee are bona fide or merely a device to take benefit or an attempt to take undue advantage of filing the appeal belatedly. We find that it does not emerge from the facts and circumstances of the case that by filing the appeal belatedly the assessee has made an attempt to take undue advantage or benefit. Accordingly, having regard to the facts and circumstances of the case, we condone the delay of 169 days in filing the appeal.
Addition u/s 68 - unexplained cash deposits in Bank account - peak credit - HELD THAT:- AO on the basis of AIR information that the assessee has deposited cash in the Bank account during the financial year relevant to the assessment year under consideration. Thus addition has been made by the Assessing Officer as an unexplained cash credit under Section 68 of the Act.
In the case of CIT Vs. Gandhi Bhaichand H Gandhi [1982 (2) TMI 28 - BOMBAY HIGH COURT] has held that the passbook maintained by the Bank could not be regarded as books of account of the assessee much less book maintained by the assessee. Therefore the Hon'ble High Court has upheld the order of the Tribunal in deleting the addition made under Section 68 of the Act on account of deposits in Banks. We find force and substance in the alternate plea of the learned Authorised Representative of the assessee that even if an addition is to be made it cannot be more than the peak credit in the bank account.
Further since the assessee's case has been decided by AO as well as the CIT (Appeals) without any representative therefore in the facts and circumstances of the case, we set aside this matter to the record of the Assessing Officer for granting one more opportunity to the assessee for explanation of the source of cash deposit and in any case the addition if any it should not be more than the peak credit in the bank account. - Appeal of the assessee is partly allowed.
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