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Showing 321 to 340 of 1393 Records
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2021 (2) TMI 1075
Levy of penalty u/s 271(1)(c) - undisclosed salary income - omission of salary from income declared in the ROI - assessment proceedings u/s 153A - HELD THAT:- As during the course of assessment proceedings u/s 153A when the assessee prepared her statement of affairs it came to her notice that salary from M/s Bhatia Corporation Pvt. Ltd. which was credited in her account but not actually received was left to be included in the income by mistake. Accordingly, she filed revised computation of total income and offered the same for taxation. Thus, the omission of salary from income declared in the ROI filed u/s 153A is a bonafide mistake. On such bonafide mistake no penalty is leviable.
The Hon'ble Supreme Court in case of Price Waterhouse Coopers (P.) Ltd. [2012 (9) TMI 775 - SUPREME COURT] wherein, in this case the assessee firm filed its return of income along with tax audit report. In its tax audit report, it was indicated that provision towards payment of gratuity was not allowable but it failed to add provision for gratuity to its total income. It was held that it was a bona fide and inadvertent error. The same can only be described as a human error which we all are prone to make.
The assessee could not be held guilty of either furnishing inaccurate particulars or attempting to conceal its income. Therefore, imposition of penalty was unjustified.
Salary was credited in the account of Yash Bhatia but was not actually received by him and therefore, it was left to be included in the income by mistake but when such mistake was noticed while preparing the statement of affair, the same was included in the income. Hence, for this reason it cannot be inferred that the assessee has intentionally not declared the salary income in the return of income. - Decided in favour of assessee.
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2021 (2) TMI 1074
Addition u/s 68 - unexplained cash deposits - CIT-A non admitting additional evidence - default of appellate proceedings under Rule 46A of the Income Tax RulesHELD THAT:- Although, before the ld. CIT(A), all the documents placed on record by the assessee and the ld. CIT(A) had accepted without any objection and in furtherance of his action of having accepted the same, he forwarded it to the A.O. for seeking his remand report. This act of the ld. CIT(A) shown his intention that he had accepted the additional evidences and had no reservations about it but in absence of remand report submitted by the A.O., the ld. CIT(A) has taken contrary view and dismissed the appeal of the assessee by not admitting the documents submitted by the assessee which in our view, is not correct.
Even the Hon’ble Supreme Court in the case of Collector, Land Acquisition Vs Mst. Katiji [1987 (2) TMI 61 - SUPREME COURT] had categorically held that “technical considerations are pitted against the cause of substantial justice it is the cause of substantial justice that must prevail.” Therefore, in view of the above proposition as laid down by the Hon’ble Supreme Court and also keeping in view the principles laid down in the decisions in the cases of CIT v. Virgin Securities and Credits P. Ltd [2011 (2) TMI 207 - DELHI HIGH COURT] . We allow both these grounds of appeal raised by the assessee and admit the documents placed on record by the assessee as additional evidences. In view of the above facts and circumstances, we have admitted the additional evidences, therefore, the matter is remanded back to the A.O. for the deciding the issue afresh. This appeal of the assessee is allowed for statistical purposes only.
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2021 (2) TMI 1073
Penalty u/s 234E - delay in filling of TDS return - intimation u/s 200A - HELD THAT:- The filing of TDS statement has happened in year 2017 and thereafter, the same has been processed and intimation issued on 4.12.2017 under section 200A by ACIT-TDS levying late filing fees under section 234E - Assessing officer was thus well within his jurisdiction to levy fees under section 234E.
Contention of the AR that since the TDS statement pertains to the period i.e for the financial year 2013-14(1st quarter) even though the same has been filed in the year 2017, the Assessing officer is not empowered to levy late filing fees under section 234E unable to be accepted as we find that at the time of processing of the TDS statement i.e. on 14.10.2017, the Assessing officer was empowered to levy such late filing fees, there is no provision to make a distinction between the TDS statements pertaining to period prior to 01.6.2015 and post such period and more, importantly, it will result in creating two classes of assessees who for the same default will suffer different penal consequences leading to unintended class discrimination which cannot be the intention of the legislature in absence of anything contrary provided under the statute.
As relying on SHRI UTTAM CHAND GANGWAL [2019 (1) TMI 1355 - ITAT JAIPUR] there is a continued default beyond 01.06.2015, therefore, following the aforesaid decision, the levy of fees under section 234E, which is levied for each day during which the default continues, is upheld for the period 01.06.2015 to the date of actual filing of the TDS statement and the balance late filing fees so levied is hereby deleted. In the result, the appeal of the assessee is partly allowed.
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2021 (2) TMI 1072
Condonation of delay in filing the present appeal by 515 days - whether sufficient cause on the part of the assessee company for not presenting the appeal within the prescribed time? - In the instant case, the ld. CIT(A) has passed ex-parte order. It has come to knowledge of the assessee when application under Vivaad to Vivad Scheme was rejected by the CIT, Ajmer and the reason was that no appeal is pending - HELD THAT:- The assessee has not received any notice for hearing of the appeal as well as the order passed by the CIT(A). The assessee was not aware about the passing of CIT(A)'s order till the rejection of application under Vivad se Vishwas Scheme by the PCIT, Ajmer. However, as soon as assessee came to know of subsequent penalty order being passed against it, it consulted its Counsel and basis his advice, the present appeal has been filed though with a delay of 515 days.
In case of Collector, Land Acquisition vs MST Katiji [1987 (2) TMI 61 - SUPREME COURT] has held that the expression ‘Sufficient Cause’ employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life-purpose of the existence of the institution of Courts.
In the instant case, applying the same principles, we find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and it does not stand to benefit by resorting to such delay more so considering the fact that it has applied for settlement of present dispute and payment of appropriate taxes. Therefore, in the factual matrix of the present case, we find that there exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon’ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred.
Though assessment and penalty proceedings are independent proceedings but at the same time, there is a close connection between the two proceedings and where the assessee has filed the present appeal apparently to safeguard its rights in relation to the penalty proceedings, the assessee cannot be denied and deprived of his legal defence and pleadings which he may take as so advised in the course of the penalty proceedings. Therefore, without going into the merits of levy of penalty which is not the subject matter of present dispute, where the assessee wishes to plead against levy of penalty, the Tribunal cannot be oblivious of its duty by denying such right to the assessee on mere technicality of delay in filing the present appeal.
In exercise of powers under section 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits.
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2021 (2) TMI 1071
Invalid intimation passed u/s 143(1) issued in the name of a non-existent entity - scheme of amalgamation conducted - assessee filed revised return of income - HELD THAT:- Assessee’s own folly has led to dismissal of appeal before Ld. CIT(A). The return was revised two times in the name of new entity to give effect to the scheme of amalgamation. Therefore, it was obligatory for the assessee to file the appeal in the name of new entity only since the appeal could not be filed in the name of non-existent entity and the appeal so filed would be invalid one as rightly held by Ld. CIT(A).
Even in the additional ground, the assessee is seeking quashing of intimation which has merely processed assessee’s revised return of income and the same has been issued in the same name in which the revised return has been filed by the assessee. If the intimation was to be quashed, as per assessee’s additional ground, then the assessee would be liable to refund back the refund granted under the said intimation. There is a vast difference in mere processing of return vis-à-vis framing of assessment. Therefore, we do not find any substance in the additional ground raised before us. The same stand dismissed.
Proceeding further, we find that Form No.35 was filed within time and the assessee was diligent in preferring further appeal before Ld. CIT(A). Keeping in view the same, we direct assessee to suitably amend Form No. 35 in the name of new entity or alternatively file a fresh Form No. 35 which shall be taken up by Ld. CIT(A) on merits. However, the concession so granted to the assessee would come at a cost of ₹ 10,000/- which shall be deposited by the assessee in Prime Minister National Relief Fund within 15 days of receipt of this order. The proof of the same shall be submitted before the registry as well as before Ld. CIT(A) and the same shall enable Ld. CIT(A) to proceed for adjudication of appeal on merits.
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2021 (2) TMI 1070
Disallowance of interest on customers deposit account - interest that accrues on the customers deposit account is also assessee’s own income and is liable to be taxed in its own hands and relied upon the order passed by the AO - HELD THAT:- Undisputedly, in AY 2006-07 the entire outstanding amount under the head “customer’s deposit” was held to be non-payable and consequently added to the income of the assessee and the corresponding interest was disallowed. It is also not in dispute that in AY 2006-07, ld. CIT (A) held that only the amount of ₹ 127,69,83,720/- was not payable out of the total deposit of ₹ 11,59,32,90,000/- having ratio of these two figures of 11.01% and this order was also followed in AYs 2008-09, 2009-10 & 2010-11.
We are of the considered view that when the method of determining the ratio between the payable amount out of total deposits has been consistently followed by the Revenue Department since AY 2006-07 and the order passed by the ld. CIT(A)’s has not been challenged nor any distinguishing facts and contrary provisions of law have been brought on record by the ld. DR for the Revenue, we find no scope to interfere the findings returned by the ld. CIT (A). So, ground no.1 is determined against the Revenue.
Disallowance u/s 14A to 0.5% of the average investment income - HELD THAT:- We are of the considered view that when all the investment considered by the AO was not yielding any exempt income, disallowance u/s 14A read with Rule 8D(2)(iii) to the extent of 0.5% of the average investment has been rightly made by the ld. CIT (A). So, finding no illegality or perversity in the findings returned by the ld.CIT (A), ground no.2 is determined against the Revenue.
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2021 (2) TMI 1069
Penalty u/s 271(1)(c) - assessment order passed u/s. 147 r.w.s. 144 that the AO issued only one notice u/s. 142(1) on 30.05.2016 and the ex parte assessment order was passed - HELD THAT:- After issuing the notice u/s. 142(1), the Assessing Officer has not mentioned any other notice or show cause notice issued to the assessee. Thus, it is apparent that the assessee was not given further opportunity by the Assessing Officer, either to show cause for passing the ex parte assessment u/s. 144 or to furnish the requisite details.
Appeal appeals arising from the penalty order passed u/s. 271(1)(b) of the Act ought to have been decided after the adjudication of the quantum appeal pending before the Ld. CIT(A). Accordingly, the matter is set aside to the record of the CIT(A) for deciding the same afresh after adjudication of the quantum appeal as well as giving one more opportunity of hearing to the assessee. Appeal of the assessee is allowed for statistical purposes.
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2021 (2) TMI 1068
Ex-party appeal decided by CIT-A - As per CIT-A appellant does not appear to be serious in prosecuting its appeal as despite number of notices were given on the last available address as per Form 35, no compliance has been made on behalf of the appellant - HELD THAT:- Nowhere it is mentioned in the impugned order, whether the notices sent by the Ld. CIT(A) were received by the assessee or not.
As mentioned earlier, the assessee has filed before the AO a letter dated 30.11.2017 received in the office of the AO on the same date stating that the entire amount of ₹ 49,99,365/- does not form part of the purchases debited to the profit and loss account ; ₹ 22,93,114/- relates to fixed assets purchases and ₹ 27,06,250/- to other purchases.
Assessee deserves reasonable opportunity of being heard by the Ld. CIT(A). Therefore, we set aside the impugned order and restore the matter to the file of the Ld. CIT(A) to make an order afresh after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the Ld. CIT(A). Appeals are allowed for statistical purposes.
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2021 (2) TMI 1067
Penalty u/s.271(1)(c) OR 271AAA - unexplained cash deposits - HELD THAT:- It is not in dispute that unexplained cash deposits of ₹ 51,63,987/- has been treated as undisclosed income by the ld. AO for the A.Y.2008-09. Hence, the said addition shall not be eligible for levy of penalty u/s.271(1)(c) of the Act in view of specific provisions contained in Section 271AAA(3) of the Act. Moreover, we also find that penalty in the instant case u/s.271(1)(c) of the Act has been levied by the ld. AO @200% of the tax sought to be evaded on the undisclosed income of ₹ 51,63,987/-.
We find that the rate of penalty @ 200% is contemplated only u/s.271(1)(c) of the Act and not u/s.271AAA of the Act. It is elementary that the provisions of Section 271AAA and Explanation 5A to Section 271(1)(c) are distinct and separate and totally operate on two independent fields for different assessment years containing different provisions altogether. Hence, we hold that the lower authorities grossly erred in levying and confirming the penalty u/s.271(1)(c) of the Act in the facts and circumstances of the case for the A.Y. 2008-09 , being the year of search. No hesitation in directing the ld. AO to delete the said penalty for the A.Y.2008-09. Accordingly, the ground Nos. 1-5 raised by the assessee are allowed.
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2021 (2) TMI 1066
Stay petition - applicant seeks a stay on collection/recovery of the outstanding amount of tax and interest etc, in respect of tax withholding demands under section 201 r.w.s. 194C - HELD THAT:- As assessee has admittedly paid more than 20% of the original demands raised on the assessee, and, therefore, it is not even necessary to deal with implications of first proviso to Section 254(2A). DR has filed a written wherein it is stated that “at the time of filing of stay of demand petition by the assessee, demand/ sum payable denotes total demand (including interest) as reduced by the amount already paid by the assessee before filing of the stay petitions”, but then this plea is only to be noted and rejected.
On the fact of it, beyond any dispute or controversy, he reference to the said requirements of pre-payment of at least 20% of the amount of tax, interest, fees or any other sum “payable under the provisions of this Act” apparently refers to the statutory liability and not the outstanding amount. By no stretch of logic, therefore, these requirements of first proviso to Section 254 (2A) come into play in the present case. We need not, therefore, deal with that aspect of the matter at this stage.
Stay petition is allowed in the terms indicated above.
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2021 (2) TMI 1065
Reopening of assessment u/s 147 - no compliance was made by the assessee of notice under section 148 of the Act as well as subsequent notices issued under section 142(1) - notices issued by the learned CIT(A) to the assessee and sent by post were returned back with the remark that the assessee left the premises thus held it to be a valid service and dismissed the appeal of the assessee without any decision on merit - HELD THAT:- CIT(A) has dismissed the appeal of the assessee due to non-representation by the assessee, without giving any reason for arriving decision on merit. In our opinion, in terms of section 250(6) of the Act, the Ld. CIT(A) is required to pass a reasoned order on merit of the issue-in-dispute despite no-representation by the assessee. In view of the facts and circumstances of the case, we set aside the finding of the learned CIT(A) and restore the matter back to the file of the Ld. CIT(A) for deciding afresh, after providing adequate opportunity of being heard to both the assessee and the Assessing Officer. Accordingly, the ground raised by the assessee are allowed for statistical purposes.
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2021 (2) TMI 1064
Deduction u/s 80JJA - Disallowance of claim in absence of complete note on collection/processing and treatment of biodegradable waste and supporting evidence - HELD THAT:- It is the submission of the assessee that given an opportunity, he is in a position to file the necessary details. Considering the totality of the facts of the case and in the interest of justice deem it proper to restore the issue to the file of the Ld. CIT(A) with a direction to grant one final opportunity to the assessee to submit the assessment orders for assessment year 2016-17 and 2017-18 and other documentary evidences as required by him for deciding the appeal. Ld. CIT(A) shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. Appeal filed by the assessee is allowed for statistical purposes.
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2021 (2) TMI 1063
Non appearance by assessee - Condonation of delay in filing Rectification application - HELD THAT:- Order, dismissing the appeal for non-prosecution, was passed by the Appellate Tribunal on 12.12.2014 [2014 (12) TMI 1366 - ITAT AHMEDABAD] whereas the Miscellaneous Application was filed on 23rd May, 2017. Appellate Tribunal took the view that with effect from 1st June, 2016, the period of limitation, during which the rectification application can be filed, is six months. Prior to the amendment, it was four years. The argument is that the new law of limitation which came into force with effect from 1st June, 2016, providing for a shorter period, cannot extinguish a vested right of action. In other words, the amendment has been made effective virtually in case of the assessee with retrospective effect. Though the amendment does not show that it is applicable with retrospective effect, however, the existing right has been extinguished with retrospective effect in case of the assessee.
Strong reliance has been placed on the decision of the Supreme Court in the case of M./P. Steel Corporation [2015 (4) TMI 849 - SUPREME COURT] and a Division Bench decision of the Madhya Pradesh High Court in the case of District Central Co-op. Banik Ltd.[2017 (10) TMI 691 - MADHYA PRADESH HIGH COURT]. The Madhya Pradesh High Court has relied upon the decision of the Supreme Court in the case of M.P. Steel Corporation (supra).We have thought fit to pass this short order so that the respondent can respond to the same on the next date of hearing.
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2021 (2) TMI 1062
Maintainability of advance ruling application u/s 245Q - Liability towards Dividend Distribution Tax (DDT) under the provision of Section 115-O - Revenue has submitted that the application may not be admitted under clause (i) of Proviso of Section 245R(2) for the reason that the questions raised in the application was already pending before the Income Tax Authority in the assessment proceeding for the A.Y.2018-19 - whether the beneficial provisions of the India-Hungary Tax Treaty could be invoked by the applicant on payment of dividend to Signify Holding B. V. by virtue of presence of the Most Favoured Nation clause in the Protocol to the India-Netherlands Tax Treaty? - whether the rate of Dividend Distribution Tax payable by the Applicant on payment of dividend to Signify Holdings B. V. would be capped at 10% by invoking the favourable provisions of India-Hungary Tax Treaty? - Whether Applicant ought to be entitled to claim a refund of Dividend Distribution Tax, paid in excess of 10% of the dividends paid to Signify Holding B.V?
HELD THAT:- As notice under section 143(2) was issued in this case for the A.Y. 2018-19 on 23.09.2019 whereas the present application was filed much before on 29.03.2019. It has been held by this Authority in the case of Mitsubishi Corporation, Japan, In re[2013 (12) TMI 1118 - AUTHORITY FOR ADVANCE RULINGS, NEW DELHI] that the question raised in advance ruling application will be considered as pending for adjudication before Income tax Authorities, only when issues are shown in return and notice under section 143(2) is issued and, thus, an application for advance ruling is to be admitted which is filed prior to issue of notice under section 143(2). In the present case also the application for advance ruling was filed prior to the issue of notice u/s 143(2) of the Act. Therefore, the questions raised by the applicant in the present case were not already pending before the Income-tax Authorities and the clause (i) of proviso to section 245R(2) is not found attracted.
In the present case the Applicant has merely sought ruling on application of beneficial provisions of DTAA for determination of DDT rate on the dividend to the non-resident shareholder. There is no design to avoid tax by any illegal or improper means. No such design to avoid tax is found present in this case. The revenue's contention that the applicability of tax treaty provision on the tax liability of the domestic company was designed for the avoidance of tax is far-fetched. In fact the basic issue to be decided in this case is whether the provisions of section 90 of the IT Act can be invoked in respect of liability of the Applicant u/s 115-O of the Act. Merely because the applicant has raised a question regarding availing the tax treaty benefit to minimize its tax liability u/s 115-O of the Act, it cannot be considered as a "transaction designed to avoid the tax". Accordingly, the objection of the revenue in this regard is overruled.
The Applicant vide submission dated 4th December 2020 has raised fresh set of five questions to be decided in the present application. The Ld. AR submitted that first three revised questions were identical with the three original questions except that in the original questions beneficial provision of the India-Hungry Tax Treaty was sought to be invoked whereas in the revised questions beneficial provisions of the India- Slovenia Tax Treaty/India Hungry Tax Treaty has been sought to be invoked. It was further clarified that question numbers 4 & 5 were added in the eventuality of question number 2 & 3 being answered in negative, which was initially omitted to be taken in the application. The Ld. AR fairly agreed that these two questions (4 & 5) were of academic nature only. The Ld. DR objected to the admission of the revised questions. It was submitted that the revised questions were filed at a very late stage and the comments of the Principal CIT is yet to be obtained in this respect. In view of the objection of the Revenue the revised questions cannot be admitted at this stage. The Applicant is free to raise the issue of revised questions in the course of merit hearing.
The application is admitted under section 245R(2) of the Act in respect of the three questions raised in the application
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2021 (2) TMI 1061
Addition u/s 68 - allowability of the expenditure under section 69C - ITAT concluding that genuineness of the high-seas sales cannot be doubted merely because the customs authorities have verified the documents at the time of clearing the goods for home consumption and while approving the high seas sale. - HELD THAT:- On the aspect of additions being made under Section 68 of the Act, we notice that the ITAT was intrigued with the approach of the AO, and rightly so, in our view. The Assessee had worked out the business income after considering the sales and purchases of mobile phones which included the high-sea sales. In these circumstances, the ITAT observed that the addition under Section 68 or 69C is contradictory to the stand taken while accepting the business income. No justification is offered by the Revenue for attracting section 68, on this count except for contending there is no net-effect on the “business income”, which is not the relevant yardstick. The amount in question, as noted above had already been charged to the income of the assessee. The question of allowability of the expenditure under section 69C has been restored to the file of the AO for fresh adjudication. Therefore, we find no reason to interfere with the findings of the ITAT on this aspect.
The genuineness of the transactions has been accepted on the basis of documentary evidence and other material gathered, which cannot be re-appreciated under Section 260A of the Act. We also do not find any perversity in the approach of the ITAT. Besides, the proposed questions of law and the arguments advanced by Mr. Hossain touch upon findings of fact rendered by the ITAT on the basis of material placed before the Lower Tax Authorities during the course of the assessment proceedings. No question of law, arises for our consideration.
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2021 (2) TMI 1060
LTCG on sale of property - reference was made under Section 55A read with Section 50C of the Income Tax Act, 1961 for valuation by the second respondent District Valuation Officer, Valuation Cell, Income Tax Department - petitioner along with her sister sold a property which sale was apparently negotiated by their father during his lifetime but before the sale could be completed, their father passed away on 15.01.2012 and therefore the buyers negotiated the sale price with the petitioner and concluded the sale in respect of two parcels of land to two different buyers - it is the contention of the petitioner that the respondents ought not to have adopted the higher value as the price of the land in 2012 had increased manifold time and that the sale price was negotiated by the petitioner’s father during his lifetime in 2010 - HELD THAT:- All the agreements are unregistered agreements. Though it is the case of the petitioner that the sales of the properties were negotiated by her father during his lifetime and had received an advance of ₹ 50 lakhs in respect of the first property in Varadharajapuram Village, Sriperumbadur Taluk, Kancheepuram District, Tamil Nadu from M/s.Tatia Development Private Limited on various dates and manifold increase in the guideline value by the Registration Department in 2012 cannot be the basis to countermand the value adopted in the sale agreement. It is therefore submitted that the higher value adopted was liable to be quashed.
Such submission cannot be entertained in absence of any document particularly in absence of documents to substantiate that there was a concluded sale agreement in respect of these properties by the petitioner’s father during his lifetime. The petitioner’s father may also have had independent transactions and merely by looking at banking transactions in the Bank Passbook, one cannot determine existence of any concluded sale agreement. Therefore, it cannot be construed that the banking transactions of the petitioner’s father pertain to the properties which were subject matter of the sale agreements. Further, under Section 17(1)(g) of the Registration Act, 1908, an agreement for sale of immovable property has to be mandatorily registered.
There are several disputed questions of fact which in my considered view are best left open to be decided by the authorities under the hierarchy of the Income Tax Act, 1961. Since none of the agreements which have been produced by the petitioner are registered documents, this Court cannot conclude that the value adopted by the petitioner reflected the correct value for the purpose of payment of stamp duty.
Therefore, even otherwise, based on the sale agreements enclosed by the petitioner, no relief can be granted to the petitioner in these writ petitions.
The petitioner has an alternate and efficacious remedy by way of an appeal against the respective assessment orders before the Commissioner of Income Tax (Appeals). Therefore, I do not find any reasons to interfere with the impugned orders. Under these circumstances, there is no merit in these writ petitions.
The petitioner is however given a liberty to file a statutory appeal against respective assessment orders before the Commissioner of Income Tax (Appeals), within a period of thirty days from date of receipt of a copy of this order.
Pending disposal of the writ petitions, no such recovery proceedings have been initiated.
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2021 (2) TMI 1059
Disallowance of Expenditure relating to loose tools - despite opportunity being given, the assessee has failed to produce the complete details of the materials received including inventory of materials, date, time and delivery of the loose tools - HELD THAT:- The assessee company has also failed to produce the material receipt register. Though it has been contended by the assessee before the tribunal as recorded in para11 of the order passed by the tribunal that assessee had produced the C.D. containing the details as requested by the Assessing Officer at the time of hearing. However, the tribunal has not recorded any finding with regard to aforesaid contention of the assessee and in para 14 has recorded the finding in favour of the assessee. In view of the reasoning assigned by the Assessing Officer in his order for disallowing the claim and in view of the assertion made by the assessee that it had furnished the details, the tribunal ought to have ascertained whether or not the assessee had furnished the details as contended by him. Therefore, in our opinion the matter requires adjudication afresh by the tribunal so far as first substantial question of law is concerned. Therefore, the first substantial question of law is answered accordingly.
Addition of interest - interest free loan to two of its subsidiaries company - HELD THAT:- The assessee again has contended before the Commissioner of Income Tax (Appeals) as is evident from para 3(ii) of the order passed by the tribunal that the assessee's own funds were ₹ 124 Crores whereas, the loan advanced is to the tune of ₹ 64 Crores. However, in this regard also, we find that the tribunal has not recorded the any finding whether or not the interest free loans were given from the borrowed funds or from the assessee's own funds. Therefore, the aforesaid issue also requires adjudication afresh by the tribunal. Accordingly, the second substantial question of law is answered.
Addition u/s 43B - deposit of property tax amounts to crystallized liability - difference between the taxes actually paid under Section 43B of the Act and taxes deposited as per the directions of the Court, when the liability to tax is disputed by the assessee and recorded a perverse finding - HELD THAT:- From perusal of Section 43B of the Act provides that any sum payable by way of tax, duty, cess or fee shall be allowed in the year in which it is actually paid. It is not in dispute that on account of directions issued by the court, the assessee paid a sum of ₹ 87,50,000/- towards property tax. Therefore, the assessee is entitled to deduction to the extent of property tax which was paid by it. The Commissioner of Income Tax (Appeals) appeal as well as the tribunal have rightly held that the liability was certain and has rightly deleted the disallowance. Reference in this connection may be made to decision of the Supreme Court in BHARAT EARTH MOVERS [2000 (8) TMI 4 - SUPREME COURT]. Substantial question of law is answered against the revenue and in favour of the assessee.
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2021 (2) TMI 1058
Assessment order passed against a non-existent company - company being amalgamated - HELD THAT:- As per MARUTI SUZUKI INDIA LIMITED (SUCCESSOR OF SUZUKI POWERTRAIN INDIA LIMITED) case[2017 (9) TMI 387 - DELHI HIGH COURT] in case the assessment orders are framed in the name of a non-existent company it does not mean a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292-B of the Income-tax Act.
In the considered opinion of this Court, the legal proposition of law has already been crystallized and there could not have been any assessment order in respect of the respondent – company as it was not in existence (amalgamating company). A similar view has been taken by a Co-ordinate Bench of this Court in the case of Commissioner of Income-tax, Central Circle, Bangalore vs. Intel Technology India (P) Ltd. [2015 (5) TMI 614 - KARNATAKA HIGH COURT]
As the legal position is abundantly clear in the light of the decisions referred to above, this Court has no hesitation in answering the questions framed in the negative i.e., in favour of the Assessee and against the Revenue.
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2021 (2) TMI 1057
Addition u/s 69B relating to difference in sundry debtors - difference between the debtors statement obtained from the Bank by the AO and the debtors balances outstanding as per balance sheet - CIT-A deleted the addition - HELD THAT:- In the instant case, no exercise or no effort was made by the AO to elicit the correctness of the sundry debtors balances given to the bank. On clarification sought by the AO, the assessee had explained the difference stating that the list of debtors with inflated balances was furnished to the bank for better credit facilities and the practice is prevalent in business community. The explanation appears to be correct, since, no other corroborative evidence is available to disprove the submission of the assessee. Though the list of sundry debtors obtained from the bank is source of information, the same cannot be a conclusive proof without having corroborative evidence to treat the difference as income.
Assessee has provided the list of debtors, produced the books of accounts and all the necessary details were made available to the AO with ledger extracts and no difference was found in the outstanding balance of the debtors. There were no sales outside the books of accounts, there were no purchases found to have been made outside the books of accounts and not even a single defect was found by the AO in the books of accounts. Therefore, there is no reason to suspect the correctness of the balances outstanding as per the books of accounts. We cannot appreciate the attitude of the assessee to submit the inflated balances to the bank to obtain the better credit facilities, the same cannot be treated as undisclosed income as provided u/s 69B of the Act without the supporting evidence.
In the instant case there is no dispute that the assessing officer has made the addition purely on the information obtained from the bank and balances of sundry debtors were never verified independently by the AO causing necessary enquiries. There was no other corroborative evidence to support the sundry debtors balances list given to the bank. The sundry debtors balances in balance sheet are in agreement with the books of accounts. No reason to interfere with the order of the Ld.CIT(A) and the same is upheld. Accordingly, the appeal of the revenue is dismissed.
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2021 (2) TMI 1056
Addition u/s 68 - Eligibility for deduction u/s 54 - CIT-A held on perusal of the details filed by the appellant makes it clear that the appellant is eligible for relief u/s 54 on his Capital Gains and additions made u/s 68 in the impugned order on the bank interest, it is observed that these are found in the appellant's Capital Gains Account and therefore, the appellant's explanation on this is plausible - Whether CIT (A) has erred in admitting the additional evidence furnished before him by the assessee in contravention of the provisions contained under Rule 46 of the Income-tax Rules, 1962 - HELD THAT:- CIT (A) has not erred in admitting the additional evidence furnished before him by the assessee in the face of the impugned order passed by the ld. CIT(A). Because in para 4.1 it is specifically recorded by the ld. CIT (A) that detail filed by the assessee was duly sent to AO for a remand report who has given remand report extracted in para 4.1 stating therein that despite giving numerous opportunities to file evidence/details, assessee has not turned up. However, assessee duly filed rejoinder to the remand report in the appellate proceedings before the ld. CIT (A) stating therein that he has submitted all the documents and evidences now relied upon in the appellate proceedings with the AO during assessment proceedings but has not been considered by the AO and that AO refused to admit the reply dated 04.03.2016 in response to notice dated 24.02.2016.
CIT (A) after examining the remand report and original assessment record pertaining to 213 pages and 6 order sheet pages noticed that in reply to the notice u/s 142 (1) dated 20.04.2015 issued to the assessee, entire detail of the capital gains and income from other sources have been attached with letter dated 01.05.2015 bearing pages 11 to 40. Aforesaid information also contains photocopies of the assessee’s capital gains earned with Corporation Bank, Dwarka, New Delhi jointly opened in assessee and his wife’s name on 06.02.2012 and has also filed copy of registered sale deed of the property in question.
When the assessee has duly filed requisite details during the assessment proceedings with copy of his bank statement showing investment of capital gain in capital gain accounts to the extent of sale proceed of his 1/5th share and also brought on record copy of registered deed for purchase of new residential property on 11.11.2013 and its cost is more than the capital gain received by the assessee and thereby satisfied the provisions contained u/s 54F of the Act, addition made by the AO is apparently not sustainable.
When all the documents were placed before the AO who has not taken note thereof for the reasons best known to him particularly when AO has not raised any objection to the documents sent to him for comment, the ld. CIT (A) was well within his right to decide the controversy by examining all the documents himself. When the assessee has been found to be eligible u/s 54 qua his capital gains which have been duly explained by virtue of the sale deed qua the property in question, bank statements and sale deed of the new residential property purchased with the capitals gains received, the ld. CIT (A) has rightly and legally deleted the additions by accepting the appeal. Finding no illegality or perversity in the impugned order passed by the ld. CIT (A), present appeal filed by the Revenue is hereby dismissed.
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