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Showing 401 to 420 of 1486 Records
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2020 (3) TMI 1086
Refusal of the system in uplodading the data to enable the petitioner to claim transitional credit of eligible duties in respect of stock held by the petitioner - Section 140 of Central Goods & Service Tax Act, 2017 - HELD THAT:- The Nodal Officer, GST Division Range is directed to look into the aforesaid issue so that the petitioner can upload the correct figure and the revised GST-TRAN- 1 form so that he can get the benefit of the input tax credit.
Petition disposed off.
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2020 (3) TMI 1085
Detention of goods alongwith vehicle - reasonable opportunity of being heard provided to the petitioner or not - HELD THAT:- This Court would only venture to observe that in cases of this nature, elementary Cannons of natural justice and fairness would require that the party should be personally heard by the decision maker either in person or through authorised representative/counsel, if any, and thereafter a considered decision is taken thereon, instead of driving the affected party like the present petitioner having to approach this Court and then litigate the matter on account of violation of natural justice - It is trite and it is too elementary to require the citation of any judicial authority that where the decision taken by the decision maker would inflict adverse civil consequence on the affected party, then the elementary principles of reasonableness, fairness and natural justice would require that the affected party is heard by the decision maker before the latter renders decision thereon.
The 2nd respondent Commissioner or the Head of the Department concerned may ensure that necessary instructions are given to the officials concerned in the Department so that unnecessary litigations of this nature could be easily avoided - petition disposed off.
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2020 (3) TMI 1084
Stay of demand - Recovery proceedings - HELD THAT:- It may be mentioned that petitioner has already paid ₹ 1,11,50,905.00 as part of the outstanding dues, ofcourse without prejudice to its rights and contentions.
Without expressing any opinion on merit, we feel that it would be in the interest of justice if the first appellate authority hears the appeal filed by the petitioner and decides the same in accordance with law within a period of four months from the date of receipt of an authenticated copy of the order.
Ordered accordingly.Till decision is rendered on the appeal of the petitioner by the first appellate authority within the period specified, there shall be stay of the demand notice issued pursuant to the assessment order dated 28th December, 2019.
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2020 (3) TMI 1083
Submission of details of Deduction of Tax at Source on the amount deposited by the petitioner with the second respondent in Term Deposit - capital gain accounts - Form - 26AS, instead of Form No.16-A to the Income Tax Department, first respondent herein and issue a certificate to the petitioner under Section 203AA of the Income Tax Act, 1961 within stipulated time - HELD THAT:- 1st respondent, based on instruction, submitted that though it is true that the Bank has deducted tax from the petitioner's account and paid to the Income Tax Department, the Bank did not generate Form 26A and therefore, such payment has not reflected in the records maintained by the 1st respondent. However, as the Bank has given the Manual Form 16A to the petitioner, he can approach the 1st respondent by making appropriate application by enclosing Form 16A for the purpose of considering the claim of the petitioner. She further submitted that if the petitioner approaches the 1st respondent with the above required application and enclosures, the 1st respondent will consider the same and pass appropriate orders.
In view of the above stated submissions made by the learned counsel for the 1st respondent, this Writ Petition is disposed of by directing the petitioner to approach the 1st respondent by making application with necessary enclosures. On receipt of such application, the 1st respondent shall pass orders within a period of four weeks thereafter.
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2020 (3) TMI 1082
Deduction u/s 10A - Whether expenditure in foreign currency was not incurred for the purpose of export of software and therefore, should not be reduced from export turnover? - ITAT setting aside disallowance and held that the said amount has to be treated as part of export turnover - HELD THAT:- From perusal of the order passed by the Tribunal, we find that the Tribunal has followed the decision of this court in the case of ‘CIT VS. M/S HEWLETT PACKARD GLOBAL SOFT LTD. [2017 (11) TMI 205 - KARNATAKA HIGH COURT] . Thus, the order passed by the Tribunal does not suffer from any infirmity. No substantial question of law.
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2020 (3) TMI 1081
Condonation of delay in filing returns of the income tax for the assessment years - proof of genuine hardship which caused the delay in filing returns - HELD THAT:- Incidents in the petitioner's family is a great tragedy inasmuch as his daughter who was then only 2 years old, was diagnosed with a serious cancerous ailment and he had to run from hospitals to hospitals for treatment of his child and that it is only in view of the extreme mental strain and the circumstances under which the petitioner was forced to divert his energies solely for the purpose of treatment of his child, that the delay has occurred. True, that the petitioner could not concentrate on his business activities, which resulted in the delay in submissions of the returns, but the same occurred only due to these circumstances and that the department has no case that there is any element of culpable negligence or any malafides or there was any deliberate delay on the part of the petitioner in delaying the submission of his returns.
Taking note of the overall facts of this case and more particularly, taking into account the tragic circumstances, under which the petitioner was forced to undergo in view of the serious cancer ailments, that had affected his young and infant daughter, this Court is of the considered view that the matter could be given a second look by the 1st respondent after considering all the matters afresh. Accordingly, It is ordered that the matter will stand remitted to the 1st respondent for consideration of all the matters afresh and after taking into account the additional materials that being produced by the petitioner without any further delay.
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2020 (3) TMI 1080
Exemption u/s 11 - denial of exemption as assessee trust is for benefit of a Sindhi community - Tribunal held that for granting registration u/s 12AA only 'nature of its object' and 'genuineness of the activities' of the trust are to be considered, even when the very basis and very object of creation of the trust was hit by the prohibition provided under Section 13(1) (b) - HELD THAT:- Referring to clauses of the trust deed, it cannot be said the trust is only religious trust. Thus, finding arrived at by the CIT that the objects of the trust were only for the benefit of a Sindhi community, is not correct. CIT was therefore not justified in rejecting registration of the Trust holding that the activities were carried out only for religious purposes as it would be the task of the Assessing Officer to be undertaken at the time of assessment on the basis of material that may be brought on record. At the time of registration of the trust under section 12AA of the Act, CIT is required to consider only 'nature of its object' and 'genuineness of the activities' of the trust.
We are of the considered opinion that the respondent-trust is charitable and religious trust which does not give benefit to any specific religious community only, and therefore, it cannot be held that Section 13(1)(b) of the Act could be attracted to the respondent-trust, and thereby, it would be entitled to get registration under Section 12A of the Act. - Decided in favour of the assessee
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2020 (3) TMI 1079
TP Adjustment - Wrong inclusion of certain comparable companies - HELD THAT:- Referring to marketing and sales support services of the assessee, companies functionally dissimilar with that of assessee need to be deselected from final list.
Non-granting of working capital adjustment and risk adjustment while computing Transfer pricing adjustment - A.R. submitted that the working capital adjustment and risk adjustments are given in various cases and accordingly pleaded that suitable direction may be issued to the AO/TPO - HELD THAT:- It is stated by the AO/TPO in the remand report that the required details were not furnished by the assessee. Hence we direct the assessee to furnish required details to the AO/TPO. Since this issue also requires examination at the end of the A.O./TPO, we restore this issue also to their file. After affording adequate opportunity of being heard, the AO/TPO may take appropriate decision in accordance with law.
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2020 (3) TMI 1078
Difference in stock found during the course of survey - HELD THAT:- D.R has submitted that this claim made on behalf of the assessee that the amount in question added to his income for the year under consideration on account of the difference in stock as found during the course of survey was already offered by the assessee as his income for A.Y. 2014-15 requires verification and since neither the AO nor the CIT(Appeals) has verified the same, the matter may be sent back to the Assessing Officer for such verification.Thus find merit in this contention of the ld. D.R.
Even the assessee has not raised any objection for sending the matter back to the Assessing Officer for such verification. Accordingly set aside the impugned order of the ld. CIT(Appeals) confirming the addition made by the Assessing Officer on this issue and restore the matter to the file of the Assessing Officer for deciding the same afresh after verifying the claim of the assessee that the amount in question on account of difference in stock as found during the course of survey was already offered as income for A.Y. 2014-15. If the claim of the assessee is found to be correct on such verification, the Assessing Officer shall delete the addition of the same amount made in the year under consideration as the same would tantamount to double addition. - Appeal of the assessee is treated as allowed for statistical purposes.
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2020 (3) TMI 1077
Assessment u/s 153A - Unexplained investment u/s 69 - HELD THAT:- Neither the Ld. CIT, DR as well as the AO were able to controvert the above findings of the CIT(A). AO in his report dated 05-02-2020 furnished before us reiterated his findings made in the order impugned and claimed that all the companies identified in the cash and billing trail are paper/shell companies, which showed that they had no existence at all. As regards the alleged cash trails, we find that the AO himself had traced the source of the monies credited to the assessee’s account.
From the charts extracted of assessment order, we note that the AO himself was not only able to identify the names of the payer companies but was also able to identify and establish the bank accounts of the source as well as source of source from which payments were received by the assessee. Both the source as well as the source of source was within the banking system only and there was no cash deposit found. It is true that there were cash deposits at the end of the 5th or 6th layer of the transaction, but as rightly held by the Ld. CIT(A) there was no conclusive evidence to show that the ultimate source of the amount received by the assessee was the cash deposit made in the accounts of the proprietary concerns whose identity was also not established by the AO.
Even with regard to the billing trails, it is noted that the AO waunable to bring to our attention, any factual material which corroborated his finding that bogus payments made by these listed companies had come back to the assessee in the form of accommodation entries or that any cash was returned to them. In support of such an allegation no tangible material or evidence such as copies of the Income Tax assessments of the payer companies were furnished. Instead we note that the AO simply made a sweeping remark that some of the entities enlisted in the billing trail were paper/shell companies. In our considered opinion such general statement making sweeping allegation was not sufficient to justify the humongous addition while framing the addition u/s 153A of the Act, which necessarily had to be based on some tangible incriminating material found in the course of search.
We therefore do not see any reason to interfere with the findings of the Ld. CIT(A). Accordingly all the grounds raised by the Revenue stand dismissed.
Assessment u/s 153A - absence of any valid search u/s 132 conducted against - We note that the AO in his report dated 05-02-2020 did not dispute the fact that name of the assessee did not feature in any of the panchamas drawn up upon conclusion of the search, but he furnished a copy of the warrant of authorization dated 02-03-2016 which proved that the assessee’s name featured therein. In our considered view therefore, although the name of the assessee does not feature in the panchnama but in view of the fact that warrant of authorization executed by the Department contained its name, the proceedings u/s 153A were validly initiated against the assessee.
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2020 (3) TMI 1076
Revision u/s 263 - unexplained cash deposited in the bank account of the assessee - HELD THAT:- Where the assessing officer has made enquiry and if the Pr. CIT is not satisfied with such enquiry he should make himself enquiry and bring clearly on record as the finding of the assessing officer being erroneous and prejudicial to the interest of revenue. This is not the case in the present case.
AO has made necessary enquiry and issue was also scrutinized by the JCIT while passing order u/s 144A of the Act. In our considered view when two officers at different stage examined the issue before setting aside these finding Ld. Pr. CIT ought to have made some enquiry. But Ld. Pr. CIT in the present case set aside the issue to the Assessing Officer which in our considered view is contrary to ratio laid by the judgment of ITO Vs D.G. Housing Projects [2012 (3) TMI 227 - DELHI HIGH COURT] is not mandate of law. Hence the direction of Ld. Pr. CIT cannot be affirmed.
If it is presumed that the hundis as recovered during the survey proceedings were not genuine in that situation the amount that was reflected on such hundis cannot to be taken as income of the assessee. Therefore the incidence of tax would be on the unexplained cash deposited in the bank account of the assessee. In this case the amount surrendered by the assessee is higher than what it was found to be unexplained cash deposits in its bank account. Therefore there is no infirmity in the order giving set off of the maturity amount. It is however further clarified that we have not expressed our view regarding genuineness of hospital receipts being invested in hundis as surrendered by one of the partner of the assessee firm.
Our finding is purely based on the material placed before us. Ld. PCIT has not brought any material suggesting that the amounts so surrendered by the partner of the firm is related to proceed of crime.
AO failed to make enquiry in respect of year wise investment - No material is placed by the assessee regarding this issue. In our considered view when there is claim of investment being made out of unrecorded hospital receipts he ought to have made investigation regarding year wise investment. This observation of the Ld. Pr.CIT is sustained.
CIT allowing higher depreciation claim of the assessee - We have perused rules and case laws as relied on by the assessee. We do not find any infirmity into the action of the assessing officer for granting depreciation @ 40%. Therefore, this ground of the Pr. CIT is also not sustainable for affirming the action u/s 263 of the Act.
AO has allowed expenditure of salary without verifying whether TDS as per provisions of the Income Tax was made or not - It is stated that the details of TDS was duly filed in support of this contention. The assessee drew our attention to paper book pages 115-116 of the paper book and also pages no. 750-764, therefore, it cannot be inferred that the assessing officer was simply allowed as not verified the tax deducted at source. This ground of Pr. CIT is also not sustainable on the facts and material on records. Appeal of the assessee is partly allowed.
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2020 (3) TMI 1075
Income accrued in India - management fee as taxable as the Fee for Technical Services (FTS) under article 13 of Double Taxation Avoidance Agreement between India-France read with protocol to the DTAA - assessee in the instant case, being a French entity, is covered by the Indo-French DTAA and in view of MFN clause, the restricted provisions of India-UK DTAA have been invoked by the assessee - HELD THAT:- In view of the arguments of the Learned DR, it is evident that the assessee has not provided the entire correspondence regarding the services rendered by the assessee to the Indian entity and in absence of which lower authorities has decided all the three issues on the basis of agreement only i.e.firstly, whether the services are purely managerial or falling under the technical/consultancy services; secondly, services are ancillary and subsidiary to the application or enjoyment of the right, property, information and thirdly, services make available technical knowledge, experience, skill, know-how etc.
No other documents have been produced by the assessee in relation to the actual services rendered. This submission of learned DR has not been disputed by the learned counsel of the assessee. In our opinion, decision arrived by the lower authorities is not based on proper appreciation of the facts required for examining of the treaty provisions applicable in the case of the assessee, and therefore we feel it appropriate to restore this issue back to the file of the AO for deciding afresh, with the direction to the assessee to furnish all the necessary documentary evidence in support of the services rendered by the assessee to the Indian entity including the correspondence in respect of the services provided so as to enable the Assessing Officer to decide the issue in dispute in accordance with law. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. The ground No. 2 of both of the appeals is accordingly allowed for statistical purposes.
Corporate guarantee fee held as fee for technical services under article 13 of the India France DTAA and section 9(1)(vii) - AO held that the said corporate guarantee fee received by the assessee from the ‘JCD India’ was actually in lieu of services rendered though it has been paid in the guise of corporate guarantee fee and therefore its actual nature is FTS - HELD THAT:- AO held that corporate guarantee fee was in lieu of the services rendered for assisting the AE in providing loan from foreign banks, but no detail of kinds of services and evidence in this regard have been brought on record by the Assessing Officer and therefore this contention of the Assessing Officer that the guarantee fee was received in lieu of the services rendered, is rejected. In our opinion, services of corporate guarantee by the assessee not being in the nature of services of managerial, technical or consultancy, the corporate guarantee fee received by the assessee cannot be termed as fee for technical services either under the section 9(1)(vii) or under article of the DTAA.
Characterizing reimbursement of Social Security Contribution to the assessee as fee for technical services under article 13 of India France DTAA - HELD THAT:- We note that the learned DRP in the assessment year 2012-13 has applied the ratio of the decision of the Hon’ble Delhi High Court in the case of Centrica India offshore private limited [2014 (5) TMI 154 - DELHI HIGH COURT] . This issue of application of the decision of the Hon’ble Delhi High Court came up before the learned DRP in assessment year 2012-13 for the first time. But we find that agreements with regard to secondment of the employees between the assessee and the JCD India, agreement between the expatriate employee and the assessee and employment agreement between the JCD India and expatriate, have not been examined either by the Assessing Officer or by the learned DRP and therefore in the interest of the justice, we feel it appropriate to restore this issue to the file of the Assessing Officer for verifying various agreements mentioned above and then decide the issuein-dispute in accordance with law after providing an adequate and sufficient opportunity of being heard to the assessee. The ground No. 4 of both the appeals, is accordingly allowed for statistical purposes.
Education cess and secondary and higher education cess is not applicable while taxing the income on gross basis under the India France DTAA - HELD THAT:- In view of the provisions of the India France treaty on the issue being similarly worded with the provisions of the India UK DTAA, following the finding of the Tribunal in the case of BOC group Ltd. [2016 (1) TMI 414 - ITAT KOLKATA] we direct the Assessing Officer to delete the education cess and secondary and higher education cess levied on the Income-tax on the gross basis under the India France DTAA. The ground No. 5 in both assessment year is thus allowed.
Credit of tax deducted at source by the JCD India while calculating the tax liability of the assessee - HELD THAT:- This is issue of verification of the credit of tax deducted at source by the Assessing Officer. Accordingly, we restore this issue to the file of the Assessing Officer with the direction to the assessee to produce all the necessary documentary evidence in support of its claim of credit of tax deducted at source for verification by the Assessing Officer along with the tax credit available in the database of the Income-tax department and then allow the credit in accordance with law. The ground No. six of the appeal in both the years is allowed for statistical purposes.
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2020 (3) TMI 1074
Revision u/s 263 - unaccounted income earned from Vyapam scam - A.O has not examined the real source of the surrendered income allegedly represented by the assessee having earned unaccounted professional receipts which were invested in short term advances in the form of ‘Hundis’ which matured during the year - HELD THAT:- In the instant case, the Learned Assessing officer has raised number of queries regarding the issues now sought to be revised by the CIT which were replied by the assessee through detailed submissions supported by relevant documents and other evidence coupled with legal propositions and decisions. It is also pertinent to note that the AO has passed a detailed order / note sheet entry while dealing and adjudicating the issues. There must be some prima facie material on the record to show that the order is unsustainable in law and the tax which was legally eligible has not been imposed. The present case is neither a case of “no enquiry’ nor is a case where the AO, failed to make necessary enquiry and the assessment order was passed after making detailed inquiry and application of mind.
Hon’ble High Court of Delhi in the case of CIT vs. DLF Ltd. [2012 (9) TMI 626 - DELHI HIGH COURT] laid down the ratio that it is not mere prejudice to the Revenue or a mere erroneous view which can be revised u/s 263 of the Act but also there should be the element of “unsustainability’ in the order of the assessing officer, which empowers the commissioner to issue notice and to proceed to pass an appropriate order.
In ARVIND JEWELLERS. [2002 (7) TMI 50 - GUJARAT HIGH COURT] when the assessee had produced relevant material and offered explanation in pursuance of notices u/s 143(2) and 142(1) of the Act and after considering the material and explanations, the AO had come to a definite conclusion. Their Lordship further held that in this situation, since the material was there on record and the said material was considered by the AO and a particular view was taken, the mere fact that a different view can be taken should not be the basis for a valid action u/s 263 of the Act and therefore, dismissing the appeal of the revenue the Hon’ble High Court held that the order u/s 263 of the Act was not justified and valid.
In the light of above judgments and applying the facts of the instant case and perusal of the assessment order, paper book and the note-sheet of the assessment proceedings show that the AO has raised several queries by way of note sheet entries and notices.
In the instant case wherein we have examined each and every issue raised by Ld. PCIT in the light of the reply filed by the assessee, information called by the Ld. A.O and the finding in the assessment order, we are of the considered view that under the given facts and in law the view taken by the AO in the order passed u.s143(3) of the Act dated 24.3.2015 seems to be reasonable and plausible which cannot be held as legally unsustainable and not in accordance with law. In our view it is passed with complete application of mind and thus it can neither be held as erroneous nor prejudicial to the interest of revenue. Therefore Ld. PCIT under the given facts and circumstances of the case erred in assuming jurisdiction u/s.263 of the Act since the Ld. A.O has made sufficient enquiry by way of questionnaire to which detailed reply have been filed from time to time and the Ld. A.O in the interest of revenue have also made addition of ₹ 7,74,12,941/- to the income disclosed by the assessee.
A.O has applied his mind and therefore the assessment order is not vitiated on the ground that the order is erroneous and prejudicial to the interest of revenue because no enquiry were undertaken. Accordingly we find merit in the contention of the learned senior counsel for the assessee and are of the considered view that Ld. PCIT grossly erred in invoking the provisions of Section 263 of the Act on the basis of issues raised in the show cause notice. Thus the order of Ld. PCIT of setting aside the assessment order u/s 143(3) of the Act under consideration are beyond the scope of Section 263 of the Act and hence not valid and we accordingly quash the relevant order passed by Ld. PCIT u/s 263 of the Act dated 30.3.2017 and restore the assessment order u/s 143(3) dated 24.3.2015. - Decided in favour of assessee
Unexplained credit u/s 68 - income surrendered during the year- HELD THAT:- Assessee is entitled for the telescoping benefit of the income surrendered during the year to the cash deposited in the bank account and thus find merit in the contention of the Ld. Senior Counsel for the assessee that the source of cash deposits is the maturity proceeds of hundis during the year which were made out of the unaccounted surrendered income offered to tax in the return of income for Assessment Year 2012-13. We therefore set aside the finding of Ld. CIT(A) and find no justification in the action of the Ld. A.O making addition u/s 68 of the Act for unexplained cash credit. We accordingly delete the addition and allow the sole ground No.2 raised by the assessee.
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2020 (3) TMI 1073
Disallowance u/s 14A r.w.r 8D - CIT-A deleted the addition - AR submitted that the assessee has not received any exempt income during the year under consideration - HELD THAT:- CIT (A) has given a categorical finding that there is no exempt income received by the assessee during the year under consideration. This fact was not disputed by the Revenue. Therefore, the CIT(A) has rightly deleted this disallowance in view of the Cheminvestment Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] . Thus, Ground No. 1 of the Revenue’s appeal is dismissed.
Addition u/s 69C - Bogus purchases - purchases were not genuine and all the notices u/s 133(6) issued to parties were returned undelivered - AR submitted that all the export receipts are credited in the bank accounts where from the withdrawals were made for the disbursement of purchase and other expenses - CIT-A deleted the addition - HELD THAT:- ale of the assessee was never doubted by the Assessing Officer. As regards the purchase from the records as mentioned in the Assessment Order itself, was found that quantitative tally of purchases of meat and exports and the same was reflected in the credit column of the bank account of the assessee. It is not a case of the Assessing Officer that payments against purchases have been made by the assessee out of books of accounts. The contention of the Ld. DR are also not tenable as the assessee filed the details of the parties from whom purchases were made and the same is mentioned in the Assessment Order itself. The CIT(A) has also given categorical finding that only 20% of the purchases where disallowed on account of cash payment which was duly reflected in the books of account of the assessee - there is no need to interfere with the findings of the CIT(A). The appeal of the Revenue is dismissed.
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2020 (3) TMI 1072
Revision u/s 263 - order of the AO (DCIT) passed U/s. 143(3) r.w.s 147 is erroneous and prejudicial to the interests of the Revenue - HELD THAT:- On perusing the order of the Ld. AO we do not find any mention regarding the issues discussed by the Ld. CIT in his order U/s. 263. Further, since the issues raised by the Ld. CIT is of grave consequence, it is necessary to examine those issues in detail. Accordingly, the ld. CIT has only directed the AO to examine those issues in detail and to pass appropriate order in accordance with law and merit which is appropriate. In this situation, we do not find much strength in the arguments advanced by the AR and we further find merit in the order of the Ld. CIT for invoking his powers u/s. 263 and directing the AO to examine the issues pointed out by him in detail and thereafter to pass appropriate order in accordance with law and merit. For the afore said reasons, we do not find it necessary to interfere with the order of the Ld. CIT. Hence, the appeal of the assessee is devoid of merits.
Order passed by the Ld. CWT U/s. 25 of the Wealth Tax Act for setting aside the order of the Ld. WTO and directing him to frame fresh assessment order after verifying the issues pointed out in the order passed U/s. 25 of the Act - HELD THAT:- We find that the order of the Ld. CWT passed U/s. 25 of the Act dated 26/3/2012 does not survive because the revised wealth tax assessment order passed by the ld. WTO U/s. 16(3) r.w.s 17 of the Act, dated 23/12/2009 was quashed by the Tribunal for the AY 2002-03 in the assessee’s case vide order dated 08/1/2014. Therefore, we hereby quash the order passed by the Ld. CWT U/s. 25 of the Act dated 26/3/2012 for the relevant AY 2002-03.
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2020 (3) TMI 1071
Rectification u/s 254 - addition u/s. 153A - HELD THAT:- Assessee has failed to rebut the presumptions u/s. 132(4) and 132(4A) of the Act and the clear incriminating material found. CIT(A) has accepted various reasoning of the assessee which put onus on the A.O. to prove that certain items which were imaginary and the explanation of the assessee which are clearly an afterthought, were actually sold and the sale proceed was received. Once the assessee has been found to have failed to disprove the presumption u/s. 132(4) and 132(4A) and the incriminating material found, the various other submissions of the assessee are imaginary and merely an afterthought.
CIT(A) is referring to case laws which are not at all in the context of the addition u/s. 153A. These are old case laws prior to the insertion of section 153A. CIT(A) is even mentioning that even if the addition is based upon the books of accounts of the assessee, the same should not be done as the A.O. has not been able to prove that what is recorded in the books as per assessee’s afterthought has actually been realized by the assessee. This, in our considered opinion, it is totally unsustainable in law.
Accordingly, in the background of the afore-said discussion and precedent, we set aside the order of the ld. CIT(A) and restore that of the A.O.
Addition on the basis of material found during search - Addition u/s 69 - Documents incriminating in nature were found in the search. From the materials referred by the assessing officer here-in-above it was clear that a sum of ₹ 1.81 crores has been paid which has not been accounted for. CIT-A has deleted the addition by making conjectures that assessee might have made further negotiations with the payees and settled the matter for an amount less than ₹ 1.81 crores - onus was upon the assessee to prove this in view of the materials found during search and the presumptions arising out of provisions of section 132(4A). Instead the learned CIT-A has put the onus on assessing officer to prove that the impugned sum was paid by other means by the assessee. In our considered opinion, the action of the learned CIT-A is clearly contrary to the mandate of provisions of section 132(4A) and the incriminating documents found. Hence, we set aside the order of learned CIT-A and restore that of the assessing officer.
A reading of the above makes it clear that in this miscellaneous application assessee is seeking a review of the order of the ITAT in the garb of rectification of mistake apparent from record under section 254(2) of the income tax act. The assessee in its miscellaneous application is agitating the same points which have already been dealt with in the ITAT order.
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2020 (3) TMI 1070
TDS u/s 195 - failure on the part of the assessee to deduct tax on payments made to foreign entities in connection with Bandwidth charges, Legal & Professional charges and Direct cost and Networking & Communication charges - AO levied tax u/s.201(1) and 201(1A) - HELD THAT:- As decided in own case [2018 (12) TMI 1805 - ITAT CHENNAI] the issue on which the Revenue has raised the levy u/s.201(1) and interest u/s.201(1A) has already been held to be not liable for deduction of TDS under the relevant provisions of the Income Tax Act, 1961.
This being so, as there is no liability of the assessee to deduct TDS on the said payments, there can be liability on the assessee for the levy u/s.201(1) and consequently 201(1A) of the Income Tax Act, 1961. In the circumstances, we find no error in the order of the learned Commissioner of Income Tax, 1961 which calls for any interference.
Set off of brought forward unabsorbed depreciation - HELD THAT:- As decided in own case . [2018 (12) TMI 1805 - ITAT CHENNAI] unabsorbed depreciation that was carried forward up to assessment year 2001-02 would be carried forward to assessment year 2002-03 and become part thereof and it would be governed by provisions of section 32(2) as amended by Finance Act, 2001 and would be available for carry forward and set off against profits and gains of subsequent years without any limit whatsoever.
Addition u/s 14A - Since, the assessee has not earned any exempt income, in accordance with the Jurisdictional High Court decisions, supra, no disallowance can be made u/s. 14A
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2020 (3) TMI 1069
Expenditure incurred on Club membership and subscription fees - Claim of business expenses by the Partner against the interest income from partnership firm - declaring loss from business - HELD THAT:- In this case, the assessee is neither carrying out any business activity, nor incurred said expenditure wholly and exclusively for the benefit of her business. Therefore, we are of the considered view that there is no merit in the contention of the assessee and also, the support taken from various case laws. Hence, we are of the considered view that there is no error in the findings of the Ld.CIT(A) in confirming disallowances made by the Ld. AO towards subscription and membership fees paid to clubs, while computing income under the head profits and gains of business or profession. Accordingly, we are inclined to uphold the findings of the Ld.CIT(A) and dismiss, appeal filed by the assessee.
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2020 (3) TMI 1068
Transfer of case - Validity of the assessment orders passed by the Additional CIT u/s 143(1) - Lack of inherent jurisdiction - whether there was any order / notification issued u/s 127/ 120(4)(b) - HELD THAT:- We note that as per section 2(7A) AO means inter alia an Addl. CIT who is directed u/s.120(4)(b) of the Act to exercise or perform all or any of the powers and functions conferred on, or assigned to, an AO under the Act. As per Section 120(4)(b) of the Act, the CBDT has to first empower the Commissioner to issue orders and then the said authority has to assign or confer the authority of the AO on the Addl.CIT. In the present case none of such notifications/ orders as required by section 120(4)(b) of the Act have been issued. Further, as per section 127 of the Act when there is a transfer of jurisdiction, then the condition therein has to be fulfilled. In the present case, originally the jurisdiction to make the assessment over the company was with the Asstt.CIT. The assessment order has been passed by the Addl.CIT without any transfer of jurisdiction in his favour. Further, on a specific query of the Bench to the Ld.DR in the course of the hearing on as to whether there was any order/ notification issued under section 127/ 120(4)(b) of the Act, the Ld.DR conceded that there were no such orders issued. In view of the thereof, the ld Counsel of the assessee company argued that as the Addl.CIT did not possess the relevant jurisdiction to act as on AO, the assessment order passed by him under section 143(3) of the Act dated 29.12.2008 is without jurisdiction, illegal, bad in law and hence ought to be quashed.
Respectfully, following assessee's own case [2019 (4) TMI 510 - ITAT MUMBAI], [2017 (12) TMI 297 - ITAT MUMBAI] and [2016 (10) TMI 1228 - ITAT MUMBAI]we allow the additional ground raised by the assessee challenging the validity of the assessment framed by the Addl.CIT and accordingly, quash the assessment framed under section 143(3) of the Act. The cross appeal of the revenue is rendered infructuous as we have already quashed the assessment order passed by the Addl. CIT in the above para. Accordingly, the same is dismissed. Since, we have quashed the assessment order on jurisdictional issue, the other grounds on jurisdictional issue as well as on merits have become academic and hence, not adjudicated.
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2020 (3) TMI 1067
Facility of paying terminal handing charges and other charges of the port terminal directly to the terminal operators instead of shifting through the Shipping Lines - Allegation that impugned SCN issued without taking into consideration the pre-negotiated contracts already entered between the first petitioner's members and clients and without considering that it has no locus and/or authority for payment of the charges - HELD THAT:- On a perusal of the provisions of 141(2) of the Customs Act, no doubt certain procedure is being prescribed with regard to storage and arrival of the consignment but the argument that the notice having been issued without jurisdiction is not able to cut eyes on plain and simple reading of the provisions of Section 143AA inserted with effect from 29th of March 2018.
On a perusal of the provision of section 141(2) of the Customs Act, the board of the custom is empowered to take measures for the facilitation of trade by prescribing accepted procedures, documentation for a class of importers or exporters or for categories of goods prohibiting accepted documentary clause on or category of goods basis of the modes of transport of goods, in order to maintain transparency in the import and export documentation or clearance or release of goods or reduction of transaction cost and balance between customs control and facilitation of legitimate trade.
The petitioners do not have any cause of action in laying challenge to Ext.P1. There was already a written contract between them and the client and obviously the apprehension expressed of deviation is at far-fetched. It will not curtail or take away their right to recover the handing charges as per the terms and conditions of the contract - there are no justification warranting any interference under Article 226 of the Constitution of India, to bring the case under the realm of judicial review.
Petition dismissed.
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