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Showing 181 to 200 of 1415 Records
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2021 (8) TMI 1235 - ITAT DELHI
Disallowances of payment on account of payment of employees contribution to Provident Fund and ESI - Amount paid before the due date before furnishing of the return of u/s 139 of the Act but not before the respective due date as prescribed under the law - HELD THAT:- The facts shows that the assessee has collected the sum being employee’s contribution under the provident fund and with respect to ESI laws. The above contribution was admittedly not deposited by the assessee within the due date prescribed under the respective ESI and PF statue however, same was deposited before the due date of filing of return of income - AO as well as the ld CIT(A) disallowed the same holding that such contribution becomes the income of the assessee under the provision of section 2(24)(x) of the Act and thereafter if the same is deposit within the due date prescribed under the respective laws then same is allowable as deduction u/s 36(1)(va).
Addition/disallowance made by the learned assessing officer of late deposit of employees contribution to the provident fund and ESI, as it is deposited before the due date of the filing of the return of an income but beyond the due date prescribed under the respective provident fund and ESI laws is not sustainable in law - Decided in favour of assessee.
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2021 (8) TMI 1234 - SUPREME COURT
Maintainability of appeal - Resolution plan of the appellant has been approved by the Committee of Creditors (COC) and placed before the adjudicating authority - HELD THAT:- In the meanwhile, the respondent has filed an appeal before the NCLAT. While issuing notice on 09.03.2021, the NCLAT directed the adjudicating authority not to pass final orders till the appeal is heard.
In view of the NCLT hearing the matter and reserving it for orders, the NCLAT is directed to decide the matter on the next date of hearing - appeal dismissed.
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2021 (8) TMI 1233 - MADRAS HIGH COURT
Recovery of Income Tax Arrears - property mentioned was already attached in Form ITCP 16 by the Income Tax Department - mortgage in existence - priority over the charge - HELD THAT:- A perusal of the entire Rule would reveal that it is not an appeal or Revision. It is an investigation by the Tax Recovery Officer, which is contemplated. Therefore, any third person if involved in such transfer of property, which is declared as void under Section 281 of the Income Tax Act may submit an application for investigation by Tax Recovery Officer. Therefore, the statute does not assume that every third person is liable under the Income Tax Act. Schedule II Rule 11 of the Income Tax Act is a beneficial provision in respect of the person, who was otherwise cheated by any of the defaulter of tax arrears, who in turn can submit an application for further investigation in order to cull out the truth or genuinity with reference to the transactions or transfers. Therefore, the Tax Recovery Officer during the pendency found that the charge created in favour of the petitioner Bank is valid, then he can pass appropriate orders withdrawing the attachment made under the provisions of the Act.
On the one hand, the Income Tax Act states that, where during the pendency of any proceedings under the Income Tax Act or after completion thereof, any assessee creates a charge on or parts with the possession by way of mortgage, sale, etc. Shall be void against any claim in respect of any tax. So also, the SARFAESI Act states that Section 26E contemplates that the secured creditors shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government of State Government or local authority. Therefore, equal weightage is given in respect of the secured creditors. So also Section 31B of Recovery of Debts and Bunkruptcy Act, 1993 states that sale of assets over which security interest is created, shall have priority and shall be paid in priority over all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or local authority - conflicting provisions in these three independent statutes are creating heart burning issues between the secured creditors as well as the Tax Department.
The “doctrine of constitutional priority” will have precedence over the other priorities. If the priority clause is provided under various enactments, the question arises as to which priority is to be held precedence over the other priorities. The test of traceability and recognition under the constitutional provisions would be the proper procedure to form an opinion - In the present scenario, the SARFAESI Act and the DRT Act provides priority to secured creditors, i.e. the banks hold priority. The Income Tax Act contemplates any such mortgage or sale during the pendency of any proceedings under the Income Tax Act shall be void. Thus, this Court has to test the supremacy on the basis of the constitutional recognition, which is supreme than the statutes enacted under the constitution. The taxation laws are constitutionally recognised with reference to the sovereignty and the policies of the Government. Thus the supremacy of the Constitution overtakes the statutes enacted and such enactments constitutionally recognised directly takes precedence over the other statutes.
The mortgages, transactions or transfers are made during the pendency of the Income Tax proceedings, then all such transfers, mortgages, transactions are void under Section 281 of the Income Tax Act and any such mortgage or attachment made by the Bank during the pendency of the Income tax proceedings, cannot be a ground to claim priority based on the provisions of the SARFAESI Act or DRT Act - the disputed factors cannot be adjudicated by the High Court under Article 226 of the Constitution of India and it is for the petitioner to establish the details regarding the mortgage and the pendency of Income tax proceedings under the Income Tax Act. It is for the petitioners to produce the documents in original and adjudicate the same in the manner prescribed under Schedule II Rule 11 of the Income Tax Act. Thus, it would be improper to form an opinion regarding the disputed facts between the parties to the lis in the present case, which requires adjudication of facts based on the documents and evidences.
The petitioner is at liberty to approach the Tax Recovery Officer by filing an appropriate application under Schedule II, Rule 11 of the Income Tax Act. In the event of filing any such application, the Tax Recovery Officer is directed to investigate the same with reference to the original documents and pass appropriate orders as expeditiously as possible - petition disposed off.
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2021 (8) TMI 1232 - ITAT BANGALORE
Income deemed to accrue or arise in India - Royalty receipts - treatment of income from sale of off-the-shelf software - India- Ireland DTAA - whether the payments made to non-resident software suppliers is "royalty" and hence TDS u/s.195 was required to be deducted on those payments or not? - HELD THAT:- Issue involved in this appeal has been put to rest in view of the decision rendered in ENGINEERING ANALYSIS CENTRE OF EXCELLENCE PRIVATE LIMITED [2021 (3) TMI 138 - SUPREME COURT] and the issue involved in this appeal has been answered against the Revenue and in favour of the assessee.
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2021 (8) TMI 1231 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of services - composite supply or not - services by way of construction of residential property is supplied along with the supply of 'other services' - Other Charges received by the company - to be treated as consideration for construction services of the Company - whether classified under HSN 9954 along with the main residential construction services of the Company or whether the same will be treated as consideration for independent service(s) of the respective head? - applicable effective rate of GST on services underlying the Other Charges.
HELD THAT:- There are more than two supplies which are independent supplies and so taxable separately, the supply of construction services of residential unit and the other supply of 'other services', viz. 'Electric meter installation and security deposit for the meter, Water connection charges and security deposit, municipal taxes, Advance maintenance, Clubhouse maintenance, Development charges, share money, entrance fee of organization, legal charges, legal fees, and, Infrastructure charges'. Services supplied in respect of the 'other charges' are different from the service of construction of residential flats. Therefore, it is observed that the 'other services' provided cannot be said to be naturally bundled and supplied in conjunction with each other in the ordinary course of business with main supply of residential flat in the subject case.
“Other Charges” received will not be treated as consideration for construction services of the Company and is not classified under SAC 9954 along with the main residential construction services - The 'other charges' will be treated as consideration received against supply of independent service(s) of the respective heads.
The amount or consideration is charged separately for different services. And even the stamp duty is also not paid on full amount collected from the customer along with the said other charges. Therefore, the other charges for the other services provided is not covered under the scope of 'Composite supply of services'. Therefore, the contention of the applicant is found not acceptable - the 'other charges' mentioned as above are held taxable as per their SAC under the GST Act, at 18% in terms of the respective and appropriate entries in Notification No.11/2017 CT (R) dated 28.6.2017 as they are covered under services, other than construction services.
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2021 (8) TMI 1230 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Exemption from GST or not - activity of providing the hostel on the rent to various students by applicant - hostel fees charged per student per day is much less than ₹ 1000/- - exemption under Serial Number 12 or Serial Number 14 of Notification No. 12/2017- Central Tax (Rate) (as amended time to time) dated 28/06/2017? - HELD THAT:- The word ‘hostel’ not being specifically mentioned implies that the same would be covered under the term ‘Whatever name called’. The services provided by such hostel, for residential and lodging purposes would be covered by the scope of notification entry where the declared tariff of a unit of an accommodation is below one thousand rupees per day. Therefore, the scope of the entry is restricted to use of the accommodation unit for residential and lodging purpose only.
The applicant is providing hostel on the rent to various students where fees charged per student per day per room is much less than ₹ 1000/- per day per person. Therefore, considering the provisions of notification Entry No. 14, and clarification given by CBIC in circular No. 32106/2018-GST dated 12th February 2018, it is held that, the applicant’s activity is satisfying the conditions of Entry Sr.no. 14 of said Notification and hence would be exempt from taxes.
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2021 (8) TMI 1229 - BOMBAY HIGH COURT
Revocation of Customs Brokers license - smuggling of Red Sanders - CESTAT set aside the proceedings on the ground of delay in inquiry - link between the smuggling of red sanders - activities for which the Respondent herein was licensed or not - HELD THAT:- The CESTAT has referred to the decision in the case of M/S UNISON CLEARING PVT LTD VERSUS COMMISSIONER OF CUSTOMS (GENERAL) MUMBAI [2015 (7) TMI 881 - CESTAT MUMBAI] to give a finding that the delay in commencement of the proceedings for revocation of licence does not command itself as indicative of proper undertaking of responsibility and that the delay in commencement of the proceedings for revocation of licence was not justifiable. It has also observed that there is an implicit responsibility on the part of the competent authority to adhere to the timelines with acceptable justification for delays, if any. The Tribunal has referred to that although the suspension was withdrawn on 11th January, 2017, another 15 days had elapsed for inquiry proceedings to commence and, thereafter there was a lapse of more than six months in completion of inquiry and a further lapse of more than two months in revocation of the licence, whereas the incident had its origin in November, 2015.
The Tribunal completely erred in ignoring the true import and misread the binding decision of this court. We observe that the Tribunal has failed to consider the detailed submissions as sought to be made out on behalf of the parties and without even dealing with the detailed explanation as well as the necessary facts, allowed the appeal of Respondent. The Tribunal ought to have discussed each of the submissions before coming to any conclusion.
Whether, on the facts and in the circumstances of the case, the CESTAT was right in holding that there is no link between the smuggling of red sanders by Shri Vijay Poojary with the activities for which the Respondent herein was licensed? - HELD THAT:- The Tribunal has nowhere discussed any of the factual aspects raised on behalf of the Revenue either as contained in the Show Cause Notice or in the Order-in-Original. There is no discussion on the alleged smuggling of red sanders nor any discussion in the various statements recorded under Section 108 of the Customs Act or the admission of Vijay Poojary or the modus operandi or as to Respondent’s involvement, investigations on various firms alleged to be used for the alleged smuggling activities, the fact of detention of Shri Vijay Poojary under COFEPOSA Act, the investigation with respect to the DEPB Scheme, the involvement of various customs firms/companies and the statement of various persons recorded under Section 108 of the Customs Act 1962 regarding destruction of post shipment documents, the factum of unrecorded exports, the alleged forgery and fabrication of documents, the admission of Shri Vijay Poojary that he was involved in smuggling of red sanders.
It is incomprehensible as to how in the light of the factual submissions discussed above and without any discussion on the same, a factual finding is recorded stating that there is no link between the smuggling of Red Sanders by Shri Vijay Poojary with the activities for which Respondent was licenced - It is also surprising that without any detailed discussion, absence of link is being given as the reason for the delay in completion of the proceedings.
The matter is remanded back to the CESTAT for fresh adjudication - Appeal allowed by way of remand.
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2021 (8) TMI 1228 - MADRAS HIGH COURT
Claiming Depreciation u/s 32 while claiming exemption u/s 11 - whether while computing income under section 11(1)(a) of the Income Tax Act, 1961, depreciation is not to be allowed? - HELD THAT:- The substantial questions of law framed for consideration have been answered in favour of the assessee in the case of CIT vs. Rajasthan and Gujarati Charitable Foundation Poona [2017 (12) TMI 1067 - SUPREME COURT] held that normal depreciation could be considered as legitimate deduction in computing real income of assessee on general principles or under Section 11(1)(a).
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2021 (8) TMI 1227 - BOMBAY HIGH COURT
Application under Direct Tax Vivad Se Vishwas Act, 2020 (DTVSV Act). - Seeking Adjust/give credit to the amount paid by petitioner under the Income Declaration Scheme, 2016 (“the IDS”) - Tax in respect of voluntarily disclosed income is refundable or not - application made under the Direct Tax Vivad Se Vishwas Act, 2020 - HELD THAT:- Sub-Section (3) of Section 187 of IDS categorically provides if the declarant fails to pay the tax, surcharge and penalty in respect of the declaration made under Section 183 on or before the dates specified in sub-Section 1, the declaration filed by him shall be deemed never to have been made under the Scheme - declaration will be non-est.
Revenue cannot retain any amounts paid under a declaration which contemplated under the Scheme is deemed never to have been made. The Scheme does not provide for Revenue to retain the tax so paid in respect of a declaration which is void and non-est. Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. This would mean there must be a law, the law must authorise the tax and the tax must be levied and collected according to the law.
In the absence of any such authority of law, a retention of tax contrary to the very Scheme cannot be permitted. Therefore, the provision of Section 191 cannot have any application to a situation where the tax is paid but the entire amount of tax is not paid and accordingly the retention of the tax by respondent no.1 is illegal.
Petitioner is entitled to an adjustment by giving credit to the amount paid under IDS. Respondent no. 3 is directed to rectify Form No. 3 issued under the DTVSV Act read with DTVSV Rules, to give credit to this amount and issue fresh Form No. 3, within two weeks from the day, an authenticated copy of this order is served upon respondent No. 3 by petitioner. Petitioner to make payment of disputed tax in accordance with revised / rectified Form-3 within a period of two weeks from the issuance of revised Form-3.
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2021 (8) TMI 1226 - MADRAS HIGH COURT
Rejection of Settlement application u/s 245C - allegation of Suppression of facts - non disclosure of earning the additional income - whether the petitioners have disclosed fully and truly all the informations and the materials relating to their foreign bank accounts and certain information not produced by the Assessee may be construed as not within their knowledge? - HELD THAT:- All along the petitioners have not submitted the source and figures and the manner in which the income has been derived. If the Assessee has not furnished the details regarding the income as well as the manner in which such income has been derived, it may not be possible for the Competent Authorities to complete the process of assessment/ reassessment as only if the manner in which the income has been derived is traced out.
In the absence of producing such details, it is the requirements contemplated under Section 245C of the Income Tax Act, the authorities may not be in a position to settle the issues. The repeated findings of the Settlement Commission that the petitioners have failed to state the source from which the income has been derived and the said non-furnishing of information resulted in rejection of application on the ground that the petitioners have suppressed the vital informations.
Petitioners have not complied with the conditions stipulated under Section 245C of the Income Tax Act and when the petitioners were not complied with the conditions stipulated under Section 245C of the Act, the judgments relied on by the petitioners- Assessees have no avail to them for the purpose of considering the present writ petitions.
Legislative intention is to ensure that the manner in which the income has been derived must be disclosed by the Assessee while submitting an application under Section 245C of the Income Tax Act and in the absence of furnishing all such details, settlement cannot be arrived and the authorities are bound to continue their investigation and proceed for assessment or for reassessment under the relevant provisions of the Income Tax Act. - Writ petition dismissed.
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2021 (8) TMI 1225 - CESTAT CHANDIGARH
Clandestine removal - cigarettes - corroborative evidence has been produced by the Revenue to allege that clandestine removal of goods or not - statements taken under coercion or not - HELD THAT:- The facts of the case which are in dispute are that during the course of investigation, excess tobacco of 210 kg alongwith other material for manufacturers “Hitler Black‟ Brand Cigarettes were found at the premises of M/s Karsh Enterprises and production was going on. Further, 4,08,000 cigarettes packets of Hitler Brand of 69mm and unaccounted cash was found at the premises of M/s Shardha Traders, Raipur proprietor of Shri Ajay Adwani. These facts were never disputed by the appellants.
Moreover, they have made a inculpatory statements. On the basis of that the statements they have been implicated in the matter by alleging the appellants are involved in clandestine removal manufacture and removal of goods - the Hon‟ble Apex Court in the case of COMMISSIONER OF C. EX., MADRAS VERSUS SYSTEMS & COMPONENTS PVT. LTD. [2004 (2) TMI 65 - SUPREME COURT] has held that what is admitted need not to be proved.
In this case, the appellant has admitted the excess stock found during the course of investigation has been procured through illicit manner, in that circumstances, revenue need not to prove that the raw material and finished goods recovered during the course of investigation were procured through licit manner.
As the appellants have been failed to brought on record any documents in their favour, the appeal is dismissed.
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2021 (8) TMI 1224 - CESTAT CHANDIGARH
Levy of service tax - Work Contract Services - HELD THAT:- Undisputedly, the services provided by the appellant were contract services as the invoices are supply of material alongwith services.
The issue is squarely covered by the decision of the Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] where it was held that Works contract were not chargeable to service tax prior to 1.6.2007.
Appeal allowed - decided in favor of appellant.
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2021 (8) TMI 1223 - CESTAT MUMBAI
Refund of Service Tax - input services invoices is not allowed as the appellants failed to co-relate payment made to vendors through bank statements - service of Information Technology Software Service not in the approved list of service - period from April, 2014 to June, 2015 - HELD THAT:- From the case records it is apparent that the supporting documents were produced, although belatedly, by the appellants before the learned Commissioner but they were not considered by him at the time of passing the impugned order of rejecting the appeal on the ground of non-production of supporting documents. The verification of the documents which was produced by the Appellant before the learned Commissioner alongwith letter dated 13.06.2017 need to be looked into and verified by the lower authorities. The verification of them by the Commissioner (Appeals) may not be proper and these documents can very well be appreciated by the Original Authority.
The matter should be remanded to the original authority for proper verification of these documents and also for de novo adjudication - Appeal allowed by way of remand.
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2021 (8) TMI 1222 - CESTAT NEW DELHI
Levy of service tax - renting of immovable property service - appellant is providing service to the film distributors by way of renting its theatre for screening films - convenience charges - pouring fees - other income - lease rent income - parking fees - service charges - VPF charges - advertisement income - sale of space or time for advertisement income - foreign exchange expenses - architect services - reverse charge mechanism.
Renting of immovable property service - HELD THAT:- This issue also came up for consideration before a Division Bench of the Tribunal in M/S. MOTI TALKIES VERSUS COMMISSIONER OF SERVICE TAX, DELHI I [2020 (6) TMI 87 - CESTAT NEW DELHI]. It was held that the demand of service tax under ‘renting of immovable property’ service was not justified for the reason that the Appellant had not provided any service to the distributor, nor the distributor had made any payment to the Appellant as a consideration for the alleged service.
Income under convenience charges, pouring fees, other income, lease rent income, parking fees, VPF charges and service charges - HELD THAT:- In regard to convenience fees, pouring fees, parking fees and service charges, it was submitted that though the demand of service tax proposed in the show cause notice dated 21.04.2014 was under the category of ‘renting of immovable property’ services, the impugned order has confirmed the demand under the category of ‘support services of business’. It was, therefore, submitted that the impugned order has gone beyond the show cause notice. In this connection, reliance was placed on a Division Bench decision of the Tribunal in M/S DELHI DUTY FREE SERVICES PVT. LTD. VERSUS COMMISSIONER CGST DIVISION, DELHI SOUTH COMMISSIONERATE [2019 (8) TMI 1489 - CESTAT NEW DELHI].
A perusal of the reply to the show cause notice filed by the appellant as also the additional written submissions clearly show that the appellant had made detailed submissions an each of these heads - the impugned order, to the extent it has confirmed the demand of service tax under these four heads is, therefore, liable to be set aside.
Advertisement Income - HELD THAT:- The Principal Commissioner committed an error in confirming the demand under this head.
Reverse Charge mechanism - foreign expenditure incurred - HELD THAT:- Not only has the Principal Commissioner ignored the submission made on behalf of the appellant, but has also failed to take into consideration the fact that service tax had been paid by the appellant. The confirmation of demand under this head, therefore, cannot be sustained - the confirmation of demands under the impugned order cannot be sustained.
Extended period of limitation - Penalty - HELD THAT:- It would not be necessary to examine the remaining issues raised by learned counsel for the appellant relating to invocation of the extended period of limitation or imposition of penalty.
The appeal is allowed.
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2021 (8) TMI 1221 - ITAT DELHI
Revenue expenditure - interest expenses towards delayed payment of EDC external Development Charges to HUDA - allowable expenditure u/s 37 or penal in nature as interest has been charged by concerned authority for delay - HELD THAT:- As decided in TRIVENI FERROUS INFRASTRUCTURE LTD [2019 (11) TMI 1670 - ITAT DELHI] the interest payment as revenue expenditure and not penal in nature, therefore respectfully following the same, the interest expenditure on delayed payment for EDC charges paid to HUDA in the year under consideration is allowable to the assessee. We do not find any error in the order of the Ld. CIT(A) and accordingly, we uphold the same. The grounds of the appeal of the Revenue are accordingly dismissed.
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2021 (8) TMI 1220 - ITAT DELHI
Estimation of income - Rate of commission on accommodation entries - income for commission earned at the rate of 2% on sale transaction - HELD THAT:- The assessee being a company of the ‘Tarun Goyal Group’ of the companies, respectfully following the finding of the Tribunal [2019 (1) TMI 1266 - ITAT DELHI], we restrict the rate of the commission assessed by the Assessing Officer to 0.50 % of the transactions carried out by the assessee in the year under consideration. The ground of the appeal of the assessee is accordingly partly allowed.
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2021 (8) TMI 1219 - ITAT DELHI
Addition u/s 36 (1)(va) - delay in depositing the ESI and EPF - employees' contribution to specified fund - amount has been paid beyond the due date as prescribed in the ESI & PF Act - HELD THAT:- As relying on M/S. EAGLE TRANS SHIPPING AND LOGISTICS (INDIA) PRIVATE LTD. [2019 (10) TMI 704 - ITAT DELHI] and M/S. BHARAT HOTELS LTD. [2018 (9) TMI 798 - DELHI HIGH COURT] Assessee company is not entitled for deduction u/ s 36(1)(va) of the Act claimed on account of depositing the employees contribution towards ESI & PF as per provisions contained u/s 2(24)(x) read with section 36(1)(va) after due date - Decided against assessee.
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2021 (8) TMI 1218 - ITAT LUCKNOW
Exemption u/s 11 - registration u/s 12A denied - proof of charitable activity u/s 2(15) - Commissioner satisfaction to charitable nature of object of assessee society - HELD THAT:- As decided in the case of Ananda Social and Educational Trust [2020 (2) TMI 1293 - SUPREME COURT] has elaborated that the Commissioner is bound to satisfy himself that the object of the Trust are genuine and that its activities are in furtherance of the objects of the Trust and has further held that the term 'activities' in the provision includes proposed activities also - Commissioner is bound to consider whether the objects of the Trust are genuinely charitable in nature and whether the activities which the Trust proposed to carry on are genuine in the sense that they are in line with the objects of the trust
CIT (Exemptions) had no objection to the objects of the assessee which necessarily are charitable in nature and regarding the transactions in the bank account, the same are explainable and these documents were available with her - we are satisfied that the activities of the assessee are genuine and therefore, we direct the CIT (Exemptions) to grant registration u/s 12A of the Act forthwith. - Decided in favour of assessee.
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2021 (8) TMI 1217 - ITAT DELHI
Assessment u/s 153A - filing of belated return in response to notice u/s 153A - denying carry-forward of loss claimed in the return filed under section 153A on the ground that return was not filed within the stipulated period of 16 days - Whether provision of the Act which would be otherwise applicable in the case of return filed under section 139(1)? - HELD THAT:- AO has not correctly interpreted the provision - If assessment proceedings in particular assessment year are pending as on the date of the search, same get abated and in consequence to notice under section 153A, assessment of such year would be subject to assessment by the revenue for the first time and the earlier return filed for the purpose of assessment would be treated as non est in law - return filed under section 153A(1)(a) is return furnished under section 139 - provision of the Act which would be otherwise applicable in the case of return filed under section 139(1) of the Act would also apply in case of return filed under section 153A of the Act.
Where the assessments are not abated or no assessments are pending as on the date of the search, the return of income filed under section 139 cannot be treated as non est. In such completed assessments, addition if any can be made on the basis of the income relating incriminating material otherwise the position accepted in completed assessment has to reiterate.
In the year under consideration, it is undisputed that no assessment was pending as on the date of the search and, therefore, the AO is not permitted to make changes in the whatever determined in regular assessment proceeding on the basis of the return of income filed, in absence of any incriminating material. Since in the regular proceeding, the assessee is entitled to carry forward the losses in terms of the provision of the Act, the action of the Assessing Officer in denying the carry forward of the loss on account of the late filing of the return under section 153A of the Act, is not justified. - Decided in favour of assessee.
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2021 (8) TMI 1216 - ITAT DELHI
Disallowance u/s 14A r.w.r.8D - computation of expenses incurred for earning the tax free income - mandation of recording of satisfaction - HELD THAT:- Disallowance made by the AO and confirmed by the CIT (A) on the basis of invalid satisfaction as to the correctness of the claim of the assessee is not sustainable, hence ordered to be deleted.
Credit of the entire amount of TDS - HELD THAT:- Following the decision rendered by the coordinate Bench of the Tribunal in assessee’s own case AY 2011-12 [2020 (1) TMI 403 - ITAT DELHI] we are of the considered view that assessee is entitled for credit of tax deducted at source on proportionate basis for the income declared during the year under consideration as per Rule 37BA(3)(ii) of the Rules.
Licence fee paid to the Department of Telecommunication (DOT) for grant of licence to operate and provide services - disallowance by the AO on the ground that the said licence fee paid by the assessee during the years is to be amortized in accordance with section 35ABB- HELD THAT:- Following the decision rendered by coordinate Bench of the Tribunal in assessee’s own case for AYs 2006-07 to 2011-12 and decision rendered by Hon’ble Delhi High Court in assessee’s own case for AYs 2009-10 & 2010-11, we are of the considered view that ld. CIT (A) has rightly deleted the addition, hence finding no infirmity or illegality in the impugned findings.
Depreciation @ 15% on the principal portion of the lease rental - HELD THAT:- In the registration certificate, assessee company is referred as the lessee and Orix Auto is referred as the lessor. Merely mentioning the name of the assessee company as the lessee does not construe ownership in favour of the assessee as has been held in case of ICDS Ltd. [2013 (1) TMI 344 - SUPREME COURT]. It is a basic principle of law that only lessor is the owner of the leased property in case of finances and depreciation is allowable to the lessor only and not the lessee. Lease agreement entered into between the assessee company and lessor of the vehicles itself provides that ownership of the vehicles will not be transferred to the lessee during the subsistence of the lease as is evident from Lease Agreement.We are of the considered view that ld. CIT (A) has rightly decided the issue in favour of the assessee.
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