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Showing 301 to 320 of 1415 Records
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2023 (4) TMI 1116
Reopening of assessment u/s 147 - validity of notice issued u/s 148A(b) - principal allegation against the petitioner is, that the Work Contract Tax (WCT), as compared to the previous Financial Years (FYs), has increased substantially, and that no payment has been made by the petitioner.
HELD THAT:- As petitioner categorically took the position, that the statutory liability for the AY in issue i.e., AY 2016-17, had been paid in the subsequent year.
It was also asserted, that the petitioner had not claimed as expenditure the taxes, which were payable, and had remained unpaid in the period in issue i.e., AY 2016-17.
For this purpose, the relevant documents, including the balance sheet for AY 2016-17 as on 31.03.2016, were furnished to the AO. Besides this, we are told, that challans concerning liquidation of the aforementioned statutory liability were also furnished.
In sum, it was the petitioner’s stand, that statutory dues concerning withholding tax, service tax and outstanding labour cess, in no circumstances, would constitute income chargeable to tax which had escaped assessment.
We may note, that these are aspects which have not been dealt with by the AO, while passing the order u/s 148A(d) of the Act - observations made by the AO missed the crucial fact, which is the petitioner’s stand, that it never claimed deductions concerning unpaid taxes adverted to hereinabove.
The impugned order passed under Section 148A(d) of the Act is set aside - AO will carry out a de novo exercise.
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2023 (4) TMI 1115
Penalty u/s 271(1)(c) - defective notice u/s 274 - shorter period of less than 24 hours - Non affording the opportunity of hearing to the parties, which has resulted into imposition of huge amount of penalty - HELD THAT:- Notice u/s 274 read with section 271(1)(c) of the Act had been issued and the petitioner was asked to appear in person or through a duly authorised representative at 11:00 a.m. on 29.11.2022. This show cause notice as to why the order imposing penalty be not made u/s 271(1)(c) of the Act gives less than 24 hours to the petitioner, whereby it had asked the petitioner to appear in person or through a duly authorised representative.
This shorter period of less than 24 hours can be termed as a pure and simple breach of principles of natural justice. It appears that on 28.11.2022, request was made for adjournment and the same is also reflected from the portal of the Tribunal and that such a request had been made to adjourn the hearing by few days. Without paying any heed to the same, when the order impugned has been passed, the Court requires to interfere.
the petition is allowed. The impugned order of penalty is quashed and set aside.
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2023 (4) TMI 1114
Revision u/s 263 - Admissibility of deduction u/s 54B - whether the twin test which are required to be fulfilled for invoking the power under Section 263 of the Act stands attracted? - HELD THAT:- Tribunal has found that the very basis on which the PCIT had invoked its power under Section 263 of the Act was absent.
Tribunal took note of the term “record” occurring in explanation (1)(b) of the Section 263 of the Act and held that the “record” shall include all documentary evidences which were submitted before the assessing officer and also those submitted before the PCIT in response to the show-cause notice issued u/s 263.
PCIT is required to examine all documentary evidences including those which were before the assessing officer and submitted before him. On fact the Tribunal found that the assessee in the return of income as well as the computation of income did not make any claim for exemption u/s 54B - Tribunal found that PCIT did not record any satisfaction based on correct and verifiable set of facts relating to the claim of deduction found u/s 54B and reflect of agricultural income in the return to fulfil the mandatory requirement of Section 54B for the land put to agricultural use. Therefore, the learned Tribunal came to the conclusion that exercise of the jurisdiction under Section 263 of the Act is totally erroneous - No substantial questions of law
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2023 (4) TMI 1113
Claim of excessive manufacturing loss on converting old gold into new gold - estimated addition representing the manufacturing loss to the extent of 1060.738 grams for the conversion of old gold into new gold - addition @ 15% applied for making the impugned addition - HELD THAT:- It is an admitted fact that when the old jewellery is converted into new jewellery there are certain inherent impurities in the old jewellery which are cleaned or washed out during the course of conversion. Though, the facts are not clear to the extent that whether old jewellery is first converted into pure gold and then new jewellery is made or that only the old jewellery is cleaned and polish into new jewellery.
Looking at the nature of business are inclined to uphold that atleast that there is a manufacturing loss of 7.5% on such conversion. We therefore, direct the AO to sustain the addition applying the rate of 7.5% as against 15% applied for making the impugned addition. We therefore, set aside the findings of the ld. CIT(A) and the issue raised by the assessee in ground no. 3, 4 & 5 is partly allowed.
Valuation of excess stock of gold jewellery found during the course of survey - Difference in stock based on the survey report - at course of survey u/s. 133A stock verification was carried out - Excess stock of 13262 grams of gold jewellery was found and the same was accepted by the assessee but in the return of income assessee disclosed the excess stock of 12810.920 grams of gold jewellery only - HELD THAT:- AO has not found any discrepancy in the books of accounts nor has he rejected the book results. The addition made by the Assessing Officer is purely based on the statement given by the assessee during the course of survey but the same does not have any evidentiary value as consistently held by Hon’ble courts. The alleged addition is only on account of the rates applied by the AO which is higher to the rate adopted by the assessee.
From perusal of the calculation of AO, we notice that he has totally ignored the cost of the precious and semi- precious stones and other metals which are necessary to make gold jewellery. Under this given facts and circumstances of the case, the details filed by the assessee based on the records, books of accounts maintained cannot be ignored and therefore, alleged addition made by the Assessing Officer deserves to be deleted - Decided in favour of assessee.
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2023 (4) TMI 1112
Disallowance of interest expenditure u/s. 40(a)(ia) for non furnishing Form 15G / Form 15H - HELD THAT:- As no TDS has been deducted by the payer on the interest and no supportive documents were filed before the Ld.AO. As in case of CIT vs. Sri Marikamba Transport Co. [2015 (6) TMI 181 - KARNATAKA HIGH COURT] has held that no disallowance of interest paid to persons who furnish form 15G/H can be made in the hands of the assessee u/s. 40(a)(ia) of the Act.
As in case of JCIT vs. Karnataka Vikas Grameena Bank [2018 (5) TMI 1627 - ITAT BANGALORE] has held that filing of form 15G/H with prescribed authority is only procedural and cannot result in a disallowance. This Tribunal also held that to the extent that payment of interest relates to the government and exempted category of persons, no disallowance is warranted.
As in the present facts, the assessee is directed to furnish Form 15G/H to the Ld.AO. AO is directed to consider the same and to consider the claim of assessee by carrying out necessary verification after affording proper opportunity of being heard. Ground raised by assessee stands allowed for statistical purposes.
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2023 (4) TMI 1111
Validity of Revision u/s 263 - assessee had failed to prove genuineness and creditworthiness of all these heads of expenses and credits - revision proceedings have been initiated on the basis of audit party - HELD THAT:- We find no force in assessee’s instant first and foremost legal argument as there is no such embargo in section 263 regarding exercise of revision jurisdiction on the basis of any proposal coming from the field authorities.
We further note that there is no indication either in the PCIT’s section 263 twin show cause notices or in his detailed discussion that he had simply accepted the proposal than applying his independent mind on the facts and circumstances of the case.
Once there is no statutory restriction placed in exercise of section 263 jurisdiction at the prescribed authorities’ instance, we must adopt stricter construction going by Commissioner of Customs vs. Dilip Kumar & Co [2018 (7) TMI 1826 - SUPREME COURT] to interpret the impugned jurisdiction in wide terms only. The assessee fails in his instant first and foremost argument.
We find from the perusal of case files that the learned counsel could not place any material before us during the course of arguments that the Assessing Officer had carried out all his details enquiries whilst disallowing/adding the relevant heads of expenses and credits (supra) in part than in entirety once it was a fit case wherein he had already held this taxpayer to have failed in proving identity, genuineness and creditworthiness by way of filing cogent evidence.
Assessment framed without carrying out detailed enquiries and verifications is indeed an erroneous one causing prejudice to the interest of Revenue which duly entitles the prescribed authority to assume its section and pass necessary orders thereupon as it thinks fit. We thus uphold the PCIT’s revision directions herein in the given facts and circumstances of the case.
We find no merit in the assessee’s instant last argument as well in light of hon’ble apex court’s decision in CIT vs. Shri Arbuda Mills Ltd. [1996 (1) TMI 11 - SUPREME COURT] that the above exclusion clause regarding prescribed authority exercising section 263 revision jurisdiction does extends to “such matters as had not been considered and decided in such appeal”. We make it clear that there is no material before us which could indicate the CIT(A) to have considered and decided the assessee’s grievance to this extent. We thus reject the assessee’s instant argument as well.
PCIT has wrongly directed the Assessing Officer to finalise proceedings u/s 144 only whilst passing his consequential order - We find no substance in the assessee’s instant concluding arguments as well once it has come on record that the Assessing Officer had himself decided all these corresponding issues after holding that the assessee had failed to prove genuineness and creditworthiness of all these heads of expenses and credits; as the case may be, by filing cogent supportive evidence. We therefore hold that there is no prejudice caused to the assessee in light of PCIT’s directions to the Assessing Officer u/s 144. The assessee fails in all her arguments thereof. The PCIT’s revision order under challenge is upheld. Decided against assessee.
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2023 (4) TMI 1110
Addition u/s 69A - search & seizure operation u/s 132 - assessee could not explain the source of cash found at the business premises of the assessee on the date of search - CIT (A) deleted partial amount holding the same to be available on the date of search as per books of account of the company and Director of the company and sustained the balance amount - HELD THAT:- A perusal of the assessment order shows that the Assessing Officer basically made the addition on the basis of the statement of the Accountant Shri Tikaram Sharma. However, it is neither coming from the assessment order nor from the order of the CIT (A) or from the Paper Book filed by the assessee as to whether the statements of the Directors of the assessee company were recorded or not and whether they have been asked any question or not on this issue either during the course of search or during the course of assessment proceedings especially when Mr. Ramesh Agarwal, on behalf of all family members and the companies had declared Rs.100 crores as undisclosed income.
Since the facts in the instant case are identical to the facts of the case in the case of Ankit Biscuits (P) Ltd [2023 (3) TMI 1233 - ITAT HYDERABAD] we deem it proper to restore the issue to the file of AO with a direction to adjudicate the issue afresh in the light of the direction given in the case of Ankit Biscuits (P) Ltd and in the light of the declaration of additional income of Rs.100 crores by Mr. Ramesh Agarwal on behalf of all family members and the companies as additional income. Appeal filed by the assessee is allowed for statistical purposes.
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2023 (4) TMI 1109
Disallowance of deduction u/s 80(P)(2)(d) - interest and dividend income earned from other cooperative societies - HELD THAT:- This component of income is allowable for deduction u/s 80P(2)(d) of the Act and this issue is covered by a series of decisions of Division Bench of this Tribunal as well as by the decision of Hon'ble Jurisdictional High Court. AO is directed to verify the interest and dividend income if earned from cooperative society, the assessee be allowed full relief to the assessee.
Deduction u/s 80(P)(2)(a)(iv) - Complete bifurcation is not discernable from the various documents filed by the ld. AR of the assessee, though, the assessee in its computation of income has mentioned the figure, therefore, this issue is also restored back to the file of AO to verify the fact and pass the order in accordance with law. Assessee is also directed to furnish complete details of such deduction with its bifurcations. AO shall grant reasonable and fair opportunity of hearing to the assessee. The assessee is also directed to provide complete details and evidences on this issue to the Assessing officer. The grounds raised by the assessee in this appeal is allowed for statistical purposes.
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2023 (4) TMI 1108
Reopening of assessment u/s 147 - Assessment of trust - undisclosed rental income received by the assessee trust - assessee trust has not filed return of income for the AY 2010-11 and, therefore, there is escapement of income in respect of rental income received by the assessee trust from the property - HELD THAT:- On perusal of the Income tax returns of the beneficiaries which were also available with the Assessing Officer at the time of reassessment proceedings as has been recorded a finding in the reassessment order that the assessee has produced the Income tax returns of the beneficiaries.
As noticed that the beneficiaries have shown their share of rental income of the property held under the trust and in such case there is no escapement of income by the assessee trust as the trust was formed as a specific trust for the benefit of the beneficiaries of the family of Late Shri Gyan Chand Khanna.
There is a direct live link between the rental income received by the trust and the income shown by the beneficiaries in the respective returns as per their respective share of rental income as specified in the trust deed and, therefore, there is no escapement of income at all. We hold that the reopening of the assessment is bad in law. We set aside the order of theCIT(Appeals) and quash the reassessment made by the Assessing Officer u/s 143(3) r.w.s. 147 - Decide in favour of assessee.
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2023 (4) TMI 1107
Reopening the assessment for years other than the current assessment year - Jurisdiction of the ld. CIT(A) in directing the AO for the years impacted by the claim for depreciation - Claim of unabsorbed depreciation - how could assessment for preceding years, since finalised, be revisited? - if the appellate authority, in directing the AO to consider reopening the assessment for years other than the current assessment year, i.e., the years impacted by the assessee’s claim of unabsorbed depreciation, being AY 2010-11, and AY 2012-13 onwards, had exceeded his jurisdiction?
HELD THAT:- A carry forward of a claim, subject to the conditions therefor being satisfied, could only be where the same stands assessed and determined for an earlier year in the first place - That is, there is no claim for the earlier year/s which, on account of it not being able to be given effect to on account of inadequacy of profits, could be carried forward to a subsequent year. This in fact is the AO’s case in substance (refer para 2). Rather, as we observe, even if the claim for depreciation on the assets of the erstwhile business were to hold, as where there has been a resumption of the aqua farm culture business – of which there is though no whisper, the same would only be on the basis of the closing WDV for AY 1998-99, i.e., as on 31.3.1998.
That is, there is no question of any claim for depreciation for the earlier years, so as to claim its carry forward to a later year. We state this as a matter of abundant caution, even as there is no case for resumption of the said business, nor indeed of the assets thereof having been deployed and put to use for the property development business.
CIT(A) did not issue any direction for disallowance for the other years, which, where given effect to, is liable to be assailed for those years, but only directed for, in view of absence of any factual or legal basis, taking remedial course of reassessment for disallowing the set off of claim of UAD for AY 1998-99 onwards in the assessments for the years for which the claim had been made by the assessee. How, pray, could that be faulted with? The assessee’s challenge is wholly without merit. His findings, which we endorse, as was by the Tribunal in the first round, again remain unassailed.
The claim of the assets being kept in a ready-to-use state for the intervening years is no more than a bogey, without any factual basis, and sufficiently impugned by the ld. CIT(A), whose findings remain uncontroverted before the Tribunal, both in the first and second round. The same in fact conforms to the undisputed facts of the case.
The answer to the question arising, as delineated in one word, is: ‘No’.
CIT(A) is clearly within his rights to require the AO to take remedial action for the other years. We have already noted an absence of any challenge before us on the merits of the decision by the ld. CIT(A), even as we have, as a matter of abundant caution, expressed our opinion thereon. Decided against assessee.
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2023 (4) TMI 1106
Rectification of mistake u/s 154 - non-granting of TDS credit to the extent claimed - Merging of orders - HELD THAT:- A.O. while passing the rectification order u/s 154 r.w.s. 143(3) of the I.T.Act dated 09.06.2022, had enhanced the TDS credit, however, did not grant TDS credit to the extent of Rs.2,53,123 (Rs.2,99,84,276 – 2,97,31,153). Therefore, the issue raised in ground 4 and its sub-grounds had already merged with rectification order dated 09.06.2022. If at all the assessee is aggrieved for non-granting of TDS credit to the extent of Rs.2,53,123, it is for the assessee to file a fresh rectification application, if so advised. With the above observations, we reject ground No.4 and its sub-grounds.
Incorrect levy of interest u/s 234C of the I.T.Act and non-granting of interest u/s 244A - We find that the above were not subject matter of rectification application u/s 154 of the I.T.Act. The assessee in its grounds of appeal before the CIT(A) had raised ground relating to issues of incorrect levy of interest u/s 234C of the I.T.Act and non-granting of interest u/s 244A of the I.T.Act. Therefore, the CIT(A) was not justified in dismissing the issue raised in grounds 2 and 3, by observing that the same has been merged with the order passed u/s 154 r.w.s. 143(3) of the I.T.Act. Hence, grounds 2 and 3 are restored to the files of the CIT(A). The CIT(A) is directed to decide the issues raised.
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2023 (4) TMI 1105
Disallowance of expenses on ad-hoc basis - Ad-hoc Disallowance @ 10% - Assessee is a Project Office of a foreign company set up in India to provide engineering consultancy services and incurred expenses like rent, professional fee, travelling and conveyance etc during the course of business - HELD THAT:- We hold that no disallowance of expenses on ad-hoc basis is called for. Reliance is placed on the decision of the Coordinate Bench of ITAT in the case of M/s. Cheminova India Ltd. [2016 (9) TMI 545 - ITAT MUMBAI] wherein held that without pointing out specific defects in the documents furnished by the assessee, disallowance made on the ground that the assessee failed to furnish all the documentary evidence is not acceptable. Decided in favour of assessee.
TDS u/s 195 - disallowance u/s 40(a)(i) - Professional Fee Payment/salary made by the assessee to its AEs treating the same as FTS, on which TDS u/s 195 has not been deducted by the assessee - HELD THAT:- Since, the provisions of TDS has been duly observed on the payment no addition is called for on this account.
Payment to TPF Getinsa Eurostudios S.L. Spain on account of professional fee expenses - Since the aforesaid amount was only receipt from Indian service provider and further payment to head-office, whereby the entire receipts, received after deduction of tax at source, has been fully reflected as income on the receipt side, the forwarding payment to head-office deserved to be allowed as deduction. The entire receipt from Indian Service Provider, is included under the head other income / Management Fee at Note 14 of the audited financial statements - disallowance of said expenditure, which is otherwise correspondingly included in other income, deserves to be allowed as deduction.
TDS, the aforesaid management fee did not involve any provision of technical knowledge / knowhow of TPF Spain to Segmental much less to assessee, who was only collecting the said fee from Segmental for further remittances to Head Office/ TPF Spain - the income in the nature of fee for technical services is not taxable in India if the same did not make available technical knowledge or knowhow of such non-resident recipient, as per the provisions of Article-13 of INDO-SPAIN DTAA read with protocol thereof - no default on part of the assessee in not deducting tax at source (TDS) on the aforesaid remittance.
Salary to Expatriates of TPF Getinsa Eurostudios SL Spain - TPF Spain has incurred costs on behalf of the assessee in terms of the salary of the expatriates for assisting the Assessee in executing services to NHAI. The assessee had only reimbursed actual cost of such employees on the basis of time spent and time cost of such employees, which was incurred by head-office. No markup has been charged by TPF Spain and there is no profit element in the said costs. Also, the provision of the act seeks to levy income tax in respect of the ‘ income' of every person. The term ‘ income’ has been exhaustively defined to include various types of gains, profits, accretion, value addition, etc. It is submitted that in absence of any profit-related element, a receipt cannot be classified as income in the hands of recipient of the money. In this scenario, any reimbursement cannot be treated as income, and therefore, cannot be subject to Income tax.
The Hon’ble High court of Karnataka in the case of Flipkart Internet P. Ltd [2022 (6) TMI 1251 - KARNATAKA HIGH COURT] held that the assessee would be eligible for Nil tax deduction certificate under section 195(2) of the Act with respect to payments of salaries of the deputed expatriate employees which were in the nature of “pure reimbursements”. We hold that no withholding of tax is warranted from the payments of Rs.2,18,66,000/-. The appeal of the assessee on this ground is allowed.
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2023 (4) TMI 1104
Complete scrutiny assessment through CASS - Unexplained cash credit - cash deposit during demonetization period unexplained money/cash deposits u/s 69A - As argued no opportunity of heard was granted as prescribed u/s 250(1) and 250(2) - HELD THAT:- The purpose of framing scrutiny assessment u/s 143(3) of the 1961 Act is, inter-alia, to see that the assessee is maintaining proper records, books of accounts etc. and compliance of various applicable provisions of the 1961 Act are made, to finally arrive at income chargeable to tax and compute tax liability of the tax-payer within the mandate of the provisions of the 1961 Act.
In case of non compliances of various applicable provisions of the 1961 Act, consequential penal provisions are prescribed in the 1961 Act itself which will get attracted and which has direct bearing on computing income chargeable to tax.
CIT(A) in the first round of appeal accepted replies/explanations/submissions/ evidences etc. filed by the assessee without calling for remand report/comments from the AO in breach of Rule 46A of the 1962 Rules and even no opportunity of heard was granted as prescribed u/s 250(1) and 250(2) of the 1961 Act, and granted substantial relief to the assessee. The assessee did not filed any appeal before tribunal against the additions confirmed by ld. CIT(A).We have set aside the appellate order of ld. CIT(A) on the grounds raised by Revenue in its appeal before tribunal, and appeal is now restored at its original level. Needless to say that powers of ld. CIT(A) are coterminus with the powers of ld. AO - Thus the appeal of the Revenue is allowed for statistical purpose, in the manner indicated above
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2023 (4) TMI 1103
Assessment u/s 153A - addition u/s 68 - whether incriminating material was found and seized during the course of search? - HELD THAT:- Assessee has filed the original return of income under section 139 of the Income Tax Act and assessment was framed u/s 143(3) and no addition was made qua bogus share application. After the search, such an assessment can be disturbed or could be construed as abated only if incriminating material was found and seized during the course of search.
Thus in the present case nothing was discovered during the course of search about this share application money. Taking the advantage of search, AO is reassessing the income of the assessee, which has already assessed in an assessment order u/s 143(3). The factum of share application money is already available in the books. It has to be assumed as examined in a scrutiny assessment. For buttressing this point, the judgment of the Hon’ble Supreme Court in the case of CIT –vs.- Kelvinator India Limited[2010 (1) TMI 11 - SUPREME COURT] can be put into service - this addition is not sustainable, hence it is deleted.
Disallowance of provision of expenses - AO has disallowed the deduction of this provision and correspondingly did not exclude from the work-in progress - CIT(Appeals) concurred with the ld. Assessing Officer by observing that assessee had claimed certain expenses, which were found to be in the nature of provisions and being unascertained liabilities, they cannot be allowed to the assessee - HELD THAT:- A provision is being made in the accounts for contingent liability. Sometime a liability is discernible but its complete crystallization cannot be ensured on the basis of material available and therefore, a provision of certain expenses are being made and if a provision is found genuine reasonable qua need of the business based on earlier years feed back, then it can be allowed as a deduction namely in the case of assessee under Head No. 5 provision of Bank interest has been made.
AO has disallowed the deduction of this provision and correspondingly did not exclude from the work-in progress. Both these things cannot be permitted simultaneously. There is no finding at the end of the ld. Assessing Officer that expenses are not genuine. He did not make any enquiry qua the nature of expenses and whether they can be termed as genuine or not. He simply took a short-cut method by treating the provision as disallowed. He has to verify if this provision has been included in the WIP or not. If included then it is to be adjudicated once it has not been allowed as a deduction then it is to be excluded from the WIP also. This expense be carried out after going through the detailed explanation of the assessee and ledger account, we are of the view that this issue be remitted to the file of ld. AO for fresh adjudication.
Undisclosed investment - Statement recorded u/s 132(4) relied upon - HELD THAT:- The CBDT is of the view that oftenly officials used to obtain confession from the assessee and stop further recovery of material. Such confessions have been retracted and then the addition could not withstand the scrutiny of higher authorities because no material was found supporting such addition.
the Board has restrained the authorities from taking confession under section 132(4) of the Income Tax Act. There are a large number of decisions which suggest that without corroborating evidence, addition ought not to be made on the basis of a declaration made under section 132(4) of the Income Tax Act.
A perusal of the above questionnaire reveals that name of the assessee is not discernable in the table of investor from Serial No. 1 to 6, neither it is reflected in the answer. In the answer, a declaration of the Director is confined which is relatable to six individuals alongwith HUF, so even there is no disclosure on behalf of the Company i.e. M/s. Agrim Infraproject Pvt. Limited. Therefore, this addition is not sustainable in the eyes of law. The addition is accordingly deleted.
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2023 (4) TMI 1102
Credit of tds denied - Demand order of the AO without considering the provision of section 205 - Discharge of onus - whether the deductor actually deducted tax from payments made to the appellant or if deducted whether it was deposited into Government Account? - second round of litigation before us - HELD THAT:- ITAT on earlier occasion while setting aside the file to the AO casted obligation on him (the AO) to cross verify the evidences furnished by the assessee and find out the fact that tax was deducted or not by the party M/s Jain Infraproject Ltd.
AO in the set aside proceedings failed to comply with the directions of the ITAT in its true sense. As such, the AO after receiving report from DDIT(Inv.) Unit-6 Kolkata that the party has not responded to the notices issued did not try to adopt any other means to verify and determine the fact whether tax at source was deducted or not against the invoices issued by the assessee. Assessee has discharged her onus by furnishing the necessary details to justify that the party i.e. M/s Jain Infraproject Ltd has deducted the TDS. Even on consideration of the circumstantial evidences, the difference between the amount of the invoices raised and the amount received by the assessee from the party is exactly matching with the amount of TDS.
Once, the assessee has discharged the onus imposed on her, the onus shifted upon the revenue to disprove the contention of the assessee based on the documentary evidence. However, we find that the Revenue despite of having enough powers under the statute failed to disprove the contention of the assessee as wrong based on the cogent information. Revenue cannot absolve from its duty merely on the reasoning that the other party i.e. M/s Jain Infraproject Ltd. is not responding to the notices issued upon it. In view of the above, we hold that the assessee is entitled for the benefit of the provisions specified under section 205 of the Act. Hence, the ground of appeal of the assessee is allowed.
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2023 (4) TMI 1101
Reopening of assessment u/s 147 - cash deposit in saving bank unexplained - assessee and her son are joint owner of a saving bank account - HELD THAT:- The assessee and the son of the assessee does not have taxable income during the year and therefore, they have not filed any return of income. The family of the assessee are having some agricultural income and small income from share transactions. The assessee is residing in very small village where no private bank are available also no core banking is available during the year under consideration. Therefore, the assessee and their family members used to deposit their cash in this account and apply for initial public issue.
It is pertinent to note that the reasons recorded in assessee and her son’s case are identical and the Assessing Officer has recorded the reasons stating therein that the assessee has entered into monetary transaction i.e. cash deposited in the saving bank account and no return of income was filed by the assessee. But the basic fact that assessee is not eligible for filing return of income was not taken into account and therefore, there was no application of mind while recording the reasons for reopening. Decided in favour of assessee.
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2023 (4) TMI 1100
TP provisions applicability on assessee’s income as chargeable to tax as per Tonnage Tax Scheme - HELD THAT:- We observe that the assessee has opted for tonnage tax scheme in respect of its income from operating the ships in terms of approval granted to it by the Addl. CIT, range-1, Kolkata vide letter dated 29.03.2017 for a period of 10 years. We have also perused the presumptive scheme as envisaged by the provisions of Section 115BB of the Act and also the decision cited by the assessee in the case of Van Oord India Pvt. Ltd. [2019 (6) TMI 1176 - ITAT MUMBAI]
Thus where the assessee has opted for tonnage tax scheme and has offered the income on presumptive basis, no TP adjustments are required to be made.
Late payment of employees contributions beyond the time as prescribed under the Provident Fund - HELD THAT:- We are of the views that the issue is covered against the assessee by the decision of Chekmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] Accordingly ground of assessee dismissed.
Dis-allowing the deduction in respect of education cess and secondary and higher secondary education cess for the purpose of computing profits and gains from business or profession - HELD THAT:- In terms of explanation 3 as inserted by Finance Act ,2022 to section 40(ii) of the Act, it has been provided tax shall include and shall be deemed to have always included any surcharge or cess by whatever name called on such tax. Considering the above position we are of the considered view that education cess and Secondary and higher Secondary Education cess are also part of the tax and not deduction is available to the assessee. Accordingly the ground raised by the assessee is dismissed.
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2023 (4) TMI 1099
Validity of proceedings u/s 153C - amendments inserted in Section 153C vide Finance Act, 2014 - HELD THAT:- As per section 153C along with Section 153A of the Act, which was introduced by Finance Act, 2014 w.e.f. 01.10.2014, the six assessment years immediately preceding the AY relevant to the previous year in which search is conducted or requisition is made will come into the purview of block assessment years.
In the present case the date of search being 10.03.2015 (previous year 2014-15) and the assessment year being 2015-16 the six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made are the AY 2014-15, 2013- 14, 2012-13, 2011-12, 2010-11, 2009-10. The year under consideration being 2009-10 indeed falls within the purview of law in view of the amendments inserted in Section 153C vide Finance Act, 2014.
As date of search is post- amendment of Section 153A and 153C i.e. on 10.03.2015 therefore, CIT(A) has committed an error in quashing the assessment order.
Accordingly, by upholding the validity of proceedings u/s 153C of the Act on the legal issue and we direct the ld CIT(A) to decide the appeal filed by the assessee on merit. Appeal filed allowed for statistical purposes.
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2023 (4) TMI 1098
TP Adjustment - payment of development expenses capitalized - Depreciation on the capitalized amount has been claimed - HELD THAT:- We are of the view that the issue regarding claim of depreciation in AY 2012-13, 2013-14, 2014-15 and 2016-17, to which the present appeals pertain, cannot be decided until the dispute regarding capitalization of aforesaid expenses in assessment order is decided.
The aforesaid dispute regarding capitalization of expenses is restored to the file of the Ld. CIT(A). In the fitness of things, therefore, in the facts and circumstances of the present appeals before us, the issues in dispute in the present four appeals before us should also be restored to the file of the Ld. CIT(A) for fresh order in accordance with law, consistent with the view taken by Ld. CIT(A) in AY 2011- 12. Ground allowed for statistical purposes.
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2023 (4) TMI 1097
Deduction u/s 54F - purchase of residential property at Hyderabad - DR had submitted that the assessee had not purchased any residential property within a period of two years from the date of sale of capital asset and as such, the assessee is not entitled to the relief u/s 54F - assessee stated that he had made the payment partially upto the date of filing of return of income to Builder/Developers - HELD THAT:- In the present case, though the assessee had paid more than 80% of the payment to the builder, yet a substantial amount of more than rupees Rs.1 crore was to be paid by the assessee to the builder, the balance payments were made beyond the time provided by the Act. In the light of the above, it has to be decided on the facts whether the assessee had purchased the residential house within four corners of section 54F or not. Though there are various decisions which are mentioned hereinabove in the submissions of the assessee, however, those are required to be examined by the lower authorities in the light of new facts namely, registration of sale deed dt.01.12.2021.
In view of the above, we are of the opinion that the matter is required to be remanded back to the file of the Assessing Officer for examining afresh.
Essential for the assessee to prove that she does not have more than a residential house at the time of claiming deduction u/s 54F - The documents produced before us clearly mentions the address of the assessee as 133A, Road No.15, Jubilee Hills, Hyderabad, Telangana – 500003. This aspect has not been brought to the notice of the Assessing Officer by the assessee. As per the contention of the ld. DR, the ld.CIT(A) while deciding the issue had relied upon various documents produced before him at the time of appellate proceedings. For the above said purposes, we may fruitfully refer order of CIT(A) wherein the ld.CIT(A) had mentioned that the assessee had produced SRO Certificate, Municipal Taxes and GST receipts to show that the property mentioned in the return of income filed by the assessee were in the nature of commercial property and was not in the nature of residential property.
As the case may be, without giving any finding on the above said facts, in the interests of justice, the case is required to be remanded back to the file of Assessing Officer with a direction to examine afresh having regard to the SRO Certificate, GST and Municipal Tax Receipts and to record a categorical finding as to for what purposes the facts were approved by municipal authorities. AO shall decide the issue in accordance with law after affording due opportunity of hearing to the assessee in accordance with law - Appeal of the Revenue is allowed for statistical purposes.
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