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Showing 381 to 400 of 1434 Records
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2021 (8) TMI 1054
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor under the garb of settlement is trying to delay the proceedings before this Tribunal. The Corporate Debtor has not denied that the amount is due and payable to the Operational Creditor, hence the default on the part of the Corporate Debtor is proved beyond any reasonable doubt.
The Petition as filed by the Operational Creditor is required to be admitted under Section 9(5) of the IBC, 2016 - application admitted - moratorium declared.
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2021 (8) TMI 1053
TDS Liability payment made by the LIC to its development officers? - Exempted Allowances u/s 10(14) - Salary - Order u/s 201 - ITO (TDS) held that in respect of 12 development officers of LIC there was a short deduction and non-deduction of the tax in the sum for the Financial Year 1999-2000 and that the said amount had to be paid by LIC to the Central Government - HELD THAT:- After the aforesaid amendment to Section 10 (14) of the Act, the legal position, as explained in the CBDT circulars issued thereafter, is that the expenditure reimbursed by LIC would qualify for deduction under Section 10 (14) of the Act. If the expenditure is incurred by the Development Officer, he cannot claim deduction u/s 10 (14) of the Act.
It appears that LIC devised a proforma for the development officer to fill up certifying the expenditure incurred by them for development of insurance business. A portion of the allowance thus granted was then treated as exempt under Section 10 (14) of the act. Way back on March 12th, 1997 the CBDT informed the Chairman LIC that such procedure was not in accordance with Section 10 (14) of the Act read with Rule 2 BB (i) of the IT Rules and that “unless an allowance is notified u/s 10 (14) (i) of the Act no portion of it can qualify for tax exemption.”
The Court finds no ground made out for interference with the impugned orders of the ITO and the Commissioner.
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2021 (8) TMI 1052
Assessment order passed u/s 143(3) without giving Petitioner/assessee a meaningful opportunity of being heard - violation of priciples of Natural justice - HELD THAT:- This Court finds that the notices dated 10th February, 2020, 10th March, 2021 and 20th March, 2021 had been issued u/s 142(1) of the Act and not under Section 144B of the Act. Consequently, the statutory mandate as enshrined in Section 144B of the Act has not been complied with in the present instance.
This Court also takes judicial notice of the fact that between 19th April, 2021 and 27th April, 2021 there was a complete lockdown in the city of Delhi. Accordingly, this Court is of the view that Petitioner has not been given an adequate and meaningful opportunity to respond to the draft assessment order cum show cause notice dated 20th April, 2021 and there has been a violation of principles of natural justice.
Consequently, the impugned Assessment Order dated 27th April, 2021 passed under section 143(3) of the Act is set aside and the matter is remanded back to the Respondent for taking necessary steps in accordance with law. With the aforesaid directions, the present petition along with pending applications stands disposed of.
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2021 (8) TMI 1051
Refund of amount adjustment towards pre-deposit in excess of 20% - recovery proceedings while appeal is pending - HELD THAT:- This Court finds that in the present matters no order has been passed by the AO under Section 245 of the Act for adjustments of refunds. Moreover, there is no order by the Assessing Officer giving any special/particular reason as to why any amount in excess of 20% of the outstanding demand should be recovered from the petitioner-assessee at this stage in accordance with paragraph 4(B) of the office memorandum dated 29th February, 2016.
Consequently, this Court is of the view that the respondents are entitled to seek pre-deposit of only 20% of the disputed demand during the pendency of the appeals in accordance with paragraph 4(A) of the office memorandum dated 29th February, 2016, as amended by the office memorandum dated 25th August, 2017.
Accordingly, the respondent no.1 is directed to refund the amount adjusted in excess of 20% of the disputed demand for the Assessment Years 2015-16 and 2016-2017 within four weeks.
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2021 (8) TMI 1050
Deduction u/s 80-IA - claim denied as assessee does not fulfil the conditions stipulated in sub-section (3) of Section 80-IA - HELD THAT:- Undertaking should not be formed by splitting up or the reconstruction of a business already in existence. There is no such allegation against the assessee. Thus, the assessee has fulfilled Condition No.1 as mentioned above.
Whether entering into a lease transaction would amount to transfer? - The second condition is that the undertaking is not formed by the transfer to a new business of machinery or plant previously used for any purpose. It is not in dispute that the windmills have been leased out by the assessee-company. As decided in BAJAJ TEMPO LIMITED [1992 (4) TMI 4 - SUPREME COURT] lease cannot tantamount to transfer.
One more condition, which is required to be fulfilled by the assessee, is that the undertaking is not a new business with plant or machinery previously used for any purpose. The question is as to how the words “previously used” have to be interpreted in the case on hand - the correct way to interpret the words “previously used” would mean actual physical use of the asset. There was nothing brought on record by the Assessing Officer that the asset was put to actual physical use for any purpose before the lease transaction and the inference drawn by the Assessing Officer is solely based upon the claim for depreciation made by the lessor. This, in our considered view, cannot be the correct way of interpretation of a beneficial provision, which provides for deduction in certain cases, where conditions are fulfilled and the object of granting such deduction was to promote industrial growth. Therefore, the CIT(A) is right in its observation that a lease transaction would not amount to a transfer and merely because the lessor had claimed 100% depreciation on the said asset cannot make the asset as 'previously used' to disqualify the asset from claiming deduction - we find that the Tribunal committed an error in reversing the order passed by the CIT(A). - Decided in favour of assessee.
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2021 (8) TMI 1049
Faceless Assessment Scheme u/s 144B - violation of principles of natural justice - HELD THAT:- Since in the present case no hearing had been granted before passing the impugned assessment order, there is a violation of principles of natural justice as well as mandatory procedure prescribed in “Faceless Assessment Scheme” and stipulated in Section 144B of the Act.
The impugned assessment order dated 09thJune 2021 as well as demand notice and all proceedings initiated pursuant thereto for the assessment year 2018-19 are set aside and the matter is remanded back to the AO who shall grant an opportunity of hearing to the petitioner by way of Video Conferencing and thereafter pass a reasoned order in accordance with law. With the aforesaid directions, the present writ petition and pending application stand disposed of.
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2021 (8) TMI 1048
Validity of reopening of assessment - denial of natural justice - no opportunity to the petitioner to place all these materials and information provided - HELD THAT:- The petitioner assessee could able to establish that the materials which all are now relied upon were the materials already adjudicated and proceedings were dropped, this Court thought fit to provide an opportunity to the petitioner to place all these materials and informations to the Assessing Officer, by way of an additional objections and the said additional objections are to be considered by the Assessing Officer with reference to the documents and evidences and pass an additional order, disposing of the additional objections to be filed by the writ petitioner and thereafter, the Assessing Authority shall proceed further. The opportunity is granted in view of the fact that the materials produced by the petitioner seems to be impressive.
This Court is further conscious about the fact that the opportunity, as contemplated pursuant to the directions of the Hon'ble Apex Court of India in GKN Drive shafts India Ltd. [2002 (11) TMI 7 - SUPREME COURT] has already been given. However, in the present case, there was an omission on the part of the assessee to include certain vital materials in the objections and in the interest of justice, such an additional opportunity is given to the petitioner to submit additional objections and further, considering the peculiar facts and circumstances. Petitioner is at liberty to submit their additional objections, as well as documents, materials, statements, etc., within a period of two weeks from the date of receipt of a copy of this order
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2021 (8) TMI 1047
Offences punishable u/s 276C(2) and 277 - assessee paid at a lesser amount than actually shown in the counter file of the income tax challan enclosed along with returns and extra digit was prefixed to the amount actually paid. - petitioners have preferred this petition u/s 482 of Cr.P.C. seeking to quash the proceedings initiated against them - HELD THAT:- In the instant case, according to the complainant, the self assessment tax was paid at lesser amount than shown in the counterfoil of the income tax challan filed along with the return and the challan was materially altered after payment to show excess payment of ₹ 1,800/- by accused No.1 in the return filed by him.
According to the circular in F.No.285/160/90/IT(INV)/190 dated 07.02.1991, wherein para 5 (iv) Clause 4 of the said circular which says section 276C(2) willful attempt to evade payment of taxes etc. Prosecution need not be initiated for an offence under this section if the aggregate amount of tax interest and penalty involved is less than ₹ 10,000/-. This limit would be ₹ 1,000/- for the corresponding provision under the Wealth –Tax Act, 1957.
Since it is not in dispute that the aggregate amount of tax interest and penalty involved in the present case is less than ₹ 10,000/- as per the above circular and the relevant para as noted above, the initiation of prosecution against the petitioners is liable to be quashed.
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2021 (8) TMI 1046
Deduction u/s 36(1)(viia)(c) - Denial of deduction assessee has not created any ‘provision for bad and doubtful debts’ in the books of accounts - CIT(A), while deciding the issue in favour of the assessee, has given a categorical finding that assessee had created a provision in the books of account of “bad and doubtful debts” but with the nomenclature “Reserve for bad and doubtful debts” - HELD THAT:- We find that CIT(A) while allowing the appeal of the assessee has given a finding that though the assessee has created the provision in the books of accounts of ₹ 212.81 Crores but has claimed deduction only to the extent of ₹ 63.23 crores and since the Assessing Officer has already allowed the claim of deduction of ₹ 21.30 crores, there was no ground for addition of balance of ₹ 41.93 crores u/s 36(1)(viia)(c) of the Act.
Before us, no fallacy in the findings of CIT(A) has been pointed out by the Revenue. - Decided against revenue.
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2021 (8) TMI 1045
Disallowance u/s 14A r.w.r 8D - assessee had submitted before the AO that no exempt income in the form of dividend has been earned by the assessee during the year under consideration - HELD THAT:- The aforesaid contention of the assessee has not controverted by the Revenue. We find that CIT(A) by following the decisions in the case of Chemnivest Ltd.[2015 (9) TMI 238 - DELHI HIGH COURT], IL & FS Energy Development Company Ltd. [2017 (8) TMI 732 - DELHI HIGH COURT] and the decision of Holcim India P. Ltd. [2014 (9) TMI 434 - DELHI HIGH COURT] held that when no dividend income has been received by the assessee, no disallowance u/s 14A of the Act is called for.
As no fallacy in the findings of CIT(A) has been pointed out by the Revenue. Revenue has also not placed on record any contrary binding decision in its support. In view of the aforesaid facts, we find no reason to interfere to the order of CIT(A) and thus the appeal of the Revenue is dismissed.
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2021 (8) TMI 1044
Assessment u/s. 143(3) - Addition towards long term capital gain, short term capital gain, agricultural income and addition u/s. 69 - admitting of additional evidences - HELD THAT:- As demonstrated from the material fact reported in the remand report by the AO that proper verification could not be carried out in the case of the assessee while framing assessment u/s.143(3) of the act since either the case or the AO has been remained in transit due to restructuring process of the department. The decision of CIT(A) for not admitting the additional evidences is not justified therefore we observe that it is appropriate to restore issues to the file of AO for deciding afresh after examination and verification of the additional evidences furnished by the assessee after providing due opportunity to the assessee.
Appeal of the assessee is allowed for statistical purposes.
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2021 (8) TMI 1043
Disallowance of provisions of section 36(1)(vii) - whether the loss on account of FDR's maintained with MMCBL, which was under liquidation, and written off of the same is eligible for deduction under the head business and profession? - HELD THAT:- It is pertinent to observe that the MMC Bank was sick bank and the amount of FDs deposited by the assessee-bank with MMC Bank has not received by the assessee bank. We also note that activities of the assessee-bank in parking surplus fund in the scheduled banks were in accordance with the guidelines of the RBI in this behalf. It was also not in dispute that Reserve Bank of India vide letter dated 12.2.2010 has advised all UCBS having exposure to MMC Bank to have full provisions against their exposure to the said bank as on 31.3.2011.
In the instant case, the entries made in the assessee's books of account in that behalf were strictly in accordance with the guidelines issued by the RBI. Consequently, the assessee bank has written off the loss on account of FDR deposited with the MMC Bank. It is demonstrated by the assessee that as per the bye-laws of the assessee-bank from the Profit & loss Appropriation account, Depreciation Investment fund has been created. The Investment Depreciation has been debited in P&L account, which has been claimed as bad debt. See case of Kalupur Commercial Co-op. Bank Ltd. [2019 (10) TMI 1068 - ITAT AHMEDABAD]- Decided against revenue.
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2021 (8) TMI 1042
Deduction u/s 80P(2)(a)(i) - HELD THAT:- In the assessee's case, mutuality principles have failed as substantial business is being carried out with the general public or nominal members and also in view of the assessee being registered as Souharda Co-operative Society and not as Co-operative Society and taking into account the byelaws and the nature of business carried out by the assessee, the society is not eligible for deduction u/s 80P of the Income tax Act, 1961. As against this, the assessee is in appeal before us.
We have heard both the parties and perused the material on record. The Hon’ble Supreme Court in the case of Mavilayi Service Cooperative Bank Ltd. [2021 (1) TMI 488 - SUPREME COURT] has held that the expression “Members” is not defined in the Income-tax Act. Hence, it is necessary to construe the expression “Members” in section 80P(2)(a)(i) of the Act in the light of definition of that expression as contained in the concerned co-operative societies Act. In view of this, the facts are to be examined in the light of principles laid down by the Hon’ble Supreme Court in Mavilayi Service Cooperative Bank Ltd. (supra). Accordingly, we remit this issue of deduction u/s. 80P(2)(a)(i) of the Act to the file of Assessing Officer to examine the same afresh in the light of the above judgment. Appeal of the assessee is allowed for statistical purposes.
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2021 (8) TMI 1041
Disallowance of claim u/s 80IA - return of income was not filled as per provisions of section 139 (1) of the Act - Assessee filed the return of income on 29.03.2014 i.e. after the due date i.e. 31.10.2013 (extended date) of filing of audited return of income u/s 139(1), had lapsed - HELD THAT:-We note that essential documents, such as, audited accounts, the tax audit report along with report in Form No. 3CCB for claiming of deduction under section 80IA of the Act were available before the assessing officer. Audited accounts contain the net profit earned by the assessee. Tax audit report contains the information relating to compliance of income tax and Form No. 3CCB contains the information for claiming of deduction under section 80IA - to examine the genuineness of claim of deduction under section 80IA the relevant details and documents were available before the assessing officer - assessee has made substantial compliance. We note that assessee company was facing genuine difficulty, as the assessee company was unable to make the payment of self- assessment tax We note that essential documents, such as, audited accounts, the tax audit report along with report in Form No. 3CCB for claiming of deduction under section 80IA of the Act were available before the assessing officer. Audited accounts contain the net profit earned by the assessee. Tax audit report contains the information relating to compliance of income tax and Form No. 3CCB contains the information for claiming of deduction under section 80IA of the Act. Therefore, to examine the genuineness of claim of deduction under section 80IA the relevant details and documents were available before the assessing officer. Hence, we note that assessee has made substantial compliance. We note that assessee company was facing genuine difficulty, as the assessee company was unable to make the payment of self- assessment tax.
Since the assessee has made substantial compliance to claim the deduction under section 80IA of the Act. There are no findings of the assessing officer that assessee is not eligible to claim deduction under section 80IA of the Act. We noticed that there is sufficient compliance with the main requirements to claim the deduction under section 80IA of the Act. In view of the above discussion, the claim of the assessee cannot be denied on technicalities when the assessee is legally otherwise entitled for deduction.
As decided in S. VENKATAIAH [2012 (6) TMI 40 - ITAT HYDERABAD] claim of the assessee cannot be denied on technicalities when the assessee is legally otherwise entitled for deduction - we direct the assessing officer to allow deduction under section 80IA - Decided in favour of assessee.
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2021 (8) TMI 1040
Addition in the income of the assessee by treating as income from other sources - Additions based on TDS form 26AS - addition of commission income under the head 'business/profession' - as per the assessee, the said amount was earned by the assessee on account of commission and the same has been reflected in Form 26AS - HELD THAT:- We are of the view that the ld. CIT(A) was not justified in dismissing the appeal of the assessee and in case, the additions confirmed by the ld. CIT(A) are sustained then in that eventuality, the same tantamount to double addition and not permissible under the law. As per the record, the assessee was not having any other income other than the LIC commission and post office commission and the TDS of the same has also been deducted on the said income which is reflected in Form 26AS, therefore, considering these peculiar facts and circumstances, we direct the A.O. to delete the addition.- Appeal of the assessee stands allowed.
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2021 (8) TMI 1039
Levy penalty u/s. 271(1)(c) - furnishing of inaccurate particulars of income - disallowance was made on ad hoc and estimated basis being 15% - HELD THAT:- Admittedly, there was no addition made by the authorities below on estimated basis. In fact all the expenses claimed by the assessee against impugned short term capital gain were treated as bogus and therefore 100% expenses were disallowed. However, the ITAT in the own case of the assessee in quantum proceedings [2019 (9) TMI 948 - ITAT AHMEDABAD] has restricted the disallowance to the tune of 15%.
As per the earlier decision, there remains no ambiguity that addition were reduced by the ITAT to extent of 15% which is purely on estimated basis and balance amount to the tune of 85% has been treated as genuine. Thus it can be inferred that there was no deliberate act on the part of the assessee to furnish inaccurate particulars of income.
In our considered view there cannot be any penalty in the hands of the assessee. For this preposition we draw strength from the judgment of Hon'ble Gujarat High Court in the case of Ramesh Chandra A Shah [2016 (8) TMI 1389 - GUJARAT HIGH COURT] We also draw support and guidance from the order of this Tribunal in the case of Maradia Copper Extrusion(P) Ltd [2017 (4) TMI 249 - ITAT AHMEDABAD] - We are of the view that the assessee cannot be visited with the penalty u/s. 271(1)(c) of the Act as the penalty was levied on the income determined on estimated basis. Hence the ground of appeal of the assessee is allowed.
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2021 (8) TMI 1038
Income from house property - determination of ALV - HELD THAT:- Determination of ALV in respect of the property in question and the assessees are co-owner of the said property, therefore to maintain the rule of consistency and following the earlier decision of this Tribunal [2021 (3) TMI 719 - ITAT ALLAHABAD], the issue is set aside to the record of the Assessing Officer for re-adjudication of the same after giving an appropriate opportunity of hearing to the assessee and then determined the ALV strictly in accordance with section 23(1) of the Income Tax Act. Appeal allowed for statistical purposes.
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2021 (8) TMI 1037
Re-characterizing the transactions of issue of debentures/CCD to the issue of equity - HELD THAT:- We in agreement that the facts and circumstances of these grounds are similar to those of the A.Y. 2014-15. The cross appeals for the preceding year were simultaneously heard. In fact, no fresh arguments were advanced for the year under consideration and both the sides adopted their respective arguments made for the immediately preceding year. We have discussed this issue in our separate order passed for the assessment year 2014-15[2021 (8) TMI 979 - ITAT PUNE] - Following the same, we accord our imprimatur to the ld. CIT(A)'s view on reversing the AO's action of re-characterizing the transactions of issue of debentures/CCD to the issue of equity. We also remit the matter of re-determination of the ALP of the transaction to the file of AO/TPO. In view of the remission of the matter for re-determination of the ALP, the assessee's grievance has become infructuous.
TP Adjustment - direction of the ld. CIT(A) to treat Marg Limited as a comparable company - HELD THAT:- We find from the Annual report of this company, there is no separate segmental information available regarding the stream of income from projects/operations. Since the income from the stream of leasing is also a part of the income from projects and no separate segmental details qua the income from projects stream are available, we are unable to approve the inclusion of this company in the list of comparables. Overturning the impugned order, we direct to exclude it from the list of comparables.
Disallowance u/s. 43CA - HELD THAT:- Where the difference between the stamp value and sale consideration is up to ten per cent, such a difference is liable to be ignored and cannot be brought within the ken of section 43CA(1). Adverting to the facts of the instant case, we find that the difference between the stamp value and the sale consideration is 7.24%. Such a difference, being less than 10%, is liable to be ignored in terms of the amended proviso to section 43CA of the Act. We, therefore, direct to delete the addition sustained in the first appeal.
Interest on debentures/CCDs to its AE - assessee contended that the interest cost was taken to work-in-progress and not claimed as deduction - HELD THAT:- The amount of capitalized interest on debentures/CCDs to the work in progress for the assessment year 2013-14, as is in excess of its ALP freshly determined by the AO/TPO, should be disallowed proportionately in the years in which the work-in-progress containing the amount of such interest standing as on 31-03-2013, is reversed on the sale of flats/plots.
Seeking deduction of Education Cess and Secondary and Higher Secondary Cess amounting to ₹ 26,66,359/- while computing the total income of the assessee company - HELD THAT:- This ground is similar to the additional ground raised for the assessment year 2014-15 wherein a direction has been given to the AO for ascertaining the correct amount of education cess and then allowing a deduction for it, after allowing opportunity of hearing to the assessee. Same view is followed for the year under consideration and the AO is also directed accordingly.
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2021 (8) TMI 1036
Unexplained cash deposits - assessee has made huge cash deposits, to the tune of ₹ 86,83,000/- into his bank account with various banks and assessee was asked to explain sources - HELD THAT:- Undisputedly the assessee is an employee of Toddy Co-operative Society, Nizamabad and he has also submitted an affidavit of the President of the Society stating that the deposits are from the receipts of the society and such an affidavit also has not been doubted by the revenue.
In such circumstances, we are of the opinion that the CIT(A) ought to have called for a report from the AO, who in turn, could have given an opportunity to assessee and also verified whether sales were recorded in books of accounts of the Society and assessee's contentions that deposits are made out of sales of the society. Hence, for this limited purpose of verification of the contentions of the assessee that the deposits are from the sales of Nizamabad Toddy Co-Op Society, we deem it fit and proper to remand the issue back to the file of the AO for de novo consideration in accordance with law. Assessee's appeal is treated as allowed for statistical purposes.
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2021 (8) TMI 1035
Nature of Cash subsidy received from Madhya Pradesh Rajyasetu Nirman - Reduction from the project cost - Amortization of expenditure - DR submitted that the amount of cash subsidy should have been offered to tax instead of showing it in the balance sheet under the head "Capital Reserve" it is because the amount of cash subsidy directly relates to the project of the assessee - HELD THAT:- Firstly subsidy was received by the assessee in the earlier years and therefore if at all it was to be subjected to tax then it should have been done in the year in which it was received - amount of subsidy received by the assessee in the earlier years cannot be added to the income of the year under consideration. Secondly, the assessee has incurred the expenses with respect to the projects as discussed above on actual basis which is evident from the financial statement of the assessee. Likewise, the assessee for the purpose of income tax has amortized the project expenses over the concession period of projects after reducing the subsidy amount of ₹ 83.80 crores received by it in the earlier years.
Admittedly, the amount of capital subsidy received by the assessee in the earlier years was shown under the head capital reserve in the financial statements prepared under the Companies Act - assessee, while amortizing the project expenses has adjusted the amount of subsidy in the profit and loss account. This fact can also be verified from the financial statement of the assessee which are placed on record. Accordingly we hold that the finding of the AO that assessee has not adjusted the amount of capital subsidy against the project expenses is devoid of any merit. At the time of hearing, the learned DR has also not brought anything on record contrary to the finding of the learned CIT(A).
Undoubtedly, the assessee has incurred the expenses on the projects which were in the nature of BOT. Thus the assessee was entitled to amortize the expenses over the concession period of these projects. Decided against revenue.
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