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Case Laws
Showing 61 to 80 of 1466 Records
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2023 (1) TMI 1408
Addition u/s. 68 - bogus Long Term Capital Gains - HELD THAT:- We find the CIT(A) justified in holding the view of AO that the transactions between the assessee and paper companies are suspicious sale transactions in shares and Long Term Capital Gain as claimed by the assessee is not allowable u/s 10(38) of the Act.
CIT(A) primarily relied on the decision of Hon’ble High Court of Bombay at Nagpur Bench in the case of Sanjay Bimalchand Jain [2017 (5) TMI 983 - BOMBAY HIGH COURT] in confirming the order of AO in making addition u/s. 68.
We find that the CIT(A) discussed the transaction in detail the impugned order, wherein we completely agree with the reasoning recorded by the CIT(A) in holding the transaction entered by the assessee with paper companies a sham transaction and denial of exemption u/s. 10(38) of the Act is justified.
We find no infirmity in the order of CIT(A) and it is justified. Thus, the grounds raised by the assessee are dismissed.
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2023 (1) TMI 1407
Delay in filling rectification application - delay of 319 days - this miscellaneous application is regarding non-discussion of additional ground taken by the assessee - HELD THAT:- There is a delay of 319 days in filing both these miscellaneous applications and as per the amendment to section 254(2) in respect of mistakes to be rectified by the Tribunal the limitation period is up to six months only and the Tribunal does not have power to entertain the miscellaneous application filed beyond the said time limit. Therefore, the present Miscellaneous Applications are time barred and hence dismissed.
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2023 (1) TMI 1406
Reopening of assessment - two parallel assessment proceedings pending - period of limitation - HELD THAT:- No assessment order could be passed after the expiry of one year from the end of the financial year - In the case on hand, the notice has been issued on April 18, 2013. The end of the financial year shall be March 31, 2014 and one year therefrom would expire on March 31, 2015. Thus, the AO had time till March 31, 2015 to complete the proceedings.
ITAT relying upon the decision of Marwadi Shares and Finance Ltd. [2018 (5) TMI 1547 - GUJARAT HIGH COURT] has allowed the appeal. The hon'ble Gujarat High Court has held in the said case that when the first notice of reopening of the assessment is not withdrawn, there is no scope in law to issue a fresh notice to reopen.
It is not in dispute that no action has been taken pursuant to the notice u/s 148 - According to the Revenue, time would expire to complete the assessment proceedings pursuant to notice on December 31, 2014, which, in our view is incorrect in view of section 153(2) of the Act as it stood prior to amendment. Decided against revenue.
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2023 (1) TMI 1405
Addition of capital gain invoking the provision of Section 2(47) - capital gain for the land owner stands reckoned on the date of JDA - Scope of Joint Development Agreement (JDA) clauses regarding transfer of title ownership - HELD THAT:- The powers vested are only administrative in nature. Clause 13.2 shows that power of attorney shall permit the developer to enter into agreement to sell, construction agreements and sale deeds with the prospective third party purchaser. It is also clarified that the GPA shall become effective only upon approval of developmental plan and installment being paid.
A combined reading of Clauses 3.1 and 13 shows that parties have specifically agreed that assessee shall continue to own entire JD property until conveyance deed took place. Clause 13 is in consonance with Clause 3.1. There is no material on record to show that any conveyance had taken place in A.Y. 2014-15. Unless, there is material to establish that there was any conveyance, the view taken by the A.O. is perverse and the said view has rightly been reversed by both CIT(A) and ITAT.
The questions of law are answered in favour of the assessee.
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2023 (1) TMI 1404
Bogus LTCG - Addition u/s 68 - Gain on sale of shares - HELD THAT:- True, the suspicious rise/fall of share price of M/s KAFL raises doubt in the mind, but Hon’ble Supreme Court held that suspicion cannot take the place of evidence. And it is noted that when called upon by the AO to prove the claim of LTCG from the transaction of M/s KAFL, the assessee have filed the best evidence to prove the transaction in question viz, bills, contract notes, demat Statement and the bank accounts statements to prove the genuineness of the transaction relating in the purchase of M/s. Panchshul Marketing Ltd and thereafter sale of shares [after amalgamation] of M/s KAFL which resulted in LTCG claim.
Therefore, by applying the test of preponderance of probability, the LTCG cannot be disallowed without AO pointing out any infirmities in the evidences produced by assessee, which unfortunately AO could not point out.
So the assessee’s claim of LTCG need to be allowed. And the commission added also is based on surmises & conjectures.
Likewise on same reasoning, the LTCG claim in the case of Mrs. Rashmi Sukesh Malik Alias Jyoti Srichand Bathija need to be allowed and is ordered so. And the commission added was based on surmises & conjecture which need to be deleted. Thus, no addition u/s 68 and 69C of the Act was warranted and so it is ordered to be deleted in both cases - Appeals of the assessee are allowed.
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2023 (1) TMI 1403
Rectification u/s 154 - Maintainability of the appeal filed by the Revenue before ITAT - low tax effect - Revenue's Misc. Application seeking recall of an order was dismissed by the Appellate Tribunal [2021 (4) TMI 1383 - ITAT AHMEDABAD] wherein the appeal of the Revenue was dismissed on account of low tax effect - as argued appeal of the Revenue fell under the Exceptions to the applicability of the said CBDT Circular mentioned therein and exception, as per the application, is that the case related to where Revenue audit objection had been accepted by the Department
HELD THAT:- DR fairly agreed with the fact that revenue audit objection was in respect of assessment framed under section 147 of the Act and not that u/s 154 of the Act, in which proceedings the present appeal lays.
Since admittedly the proceedings, in relation to which the Revenue has preferred appeal against the appellate order before us, is not in lieu of audit objection being accepted by the Department, the Revenue’s case does not fall in the Exception provided in clause 10(c) of the CBDT Circular no.23 of 2019 requiring withdrawal of the appeal of the Department where tax effect fall below the threshold limit. In view of the same, the MA filed by the Revenue merits no consideration, and is dismissed accordingly. Misc. Application of the Revenue is dismissed.
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2023 (1) TMI 1402
Penalty u/s 271(1)(c) - defective notice u/s 274 - non specification of charge - validity of Second Penalty Notice -admissibility of deduction u/s 10B - HELD THAT:- As disallowance of deduction u/s 10B the AO had initiated penalty proceedings for furnishing inaccurate particulars of income. In the Penalty Order, penalty has been levied for furnishing inaccurate particulars of income. Thus, penalty u/s 271(1)(c) has been levied on the same ground on which penalty proceedings were initiated.
Thus, we hold that the Second Penalty Notice was a valid notice issued under Section 274 of the Act and that the CIT (A) erred in deleting the penalty on the ground that First Penalty Notice issued under Section 274 read with Section 271(1)(c) of the Act was void-ab-initio without taking into the consideration complete facts of the case and the Second Penalty Notice. Accordingly, we set aside the order passed by the CIT (A) in this regard and remand the issue of levy of penalty for furnishing inaccurate particulars of income in relation to deduction claimed under Section 10B of the Act back to the file of CIT (A) for adjudication on merits.
Second Penalty Notice did not make any reference to furnishing of inaccurate particulars of income in relation to the transfer pricing addition - Assessing Officer had only pursued levy of penalty in relation to disallowance of deduction u/s 10B after the order passed by the CIT (A) in quantum appeal and did not put the Assessee to notice in relation to penalty for furnishing inaccurate particulars of income pertaining to the transfer pricing addition - Further, it was also contended by the Ld. Departmental Representative that the penalty has been levied on the basis of Second Penalty Notice. Thus, no penalty can be levied in relation to the transfer pricing addition. Revenue appeal partly allowed.
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2023 (1) TMI 1401
Disallowance u/s 14A r.w.r. 8D - Mandation to record satisfaction in not accepting suo moto disallowance made by the assessee - Appellant had suo-moto disallowed u/s 14A computed based on a detailed scientific working as certified by an independent Chartered Accountant - HELD THAT:- We note that in identical case this ITAT in assessee’s own case for AY 2015-16 [2022 (8) TMI 1529 - ITAT DELHI] held that provisions of section 14A of the Act contemplates recording of satisfaction by the Assessing Officer having regard to the accounts of the assessee if he is not satisfied with the claim of the assessee in respect of expenditure in relation to income which does not form part of total income. On reading of the assessment order, we find that the AO having regard to the suo moto disallowance made by the assessee has not recorded any objective satisfaction as to why the allocation of indirect expenses made by the assessee is not sufficient to meet the expenses attributable for earning exempt dividend income.
Thus, AO has not recorded any objective satisfaction in not accepting suo moto disallowance made by the assessee. Thus, we direct the AO to accept the suo moto disallowance made by the Assessing Officer in respect of disallowance under Rule 8D(2)(iii) read with section 14A.
Also disallowance u/s 14A r.w.r. 8D, only those investment should be considered which has not yielded exempt income. Accordingly, we set-aside the order of the authorities below and decide the issue in favour of the assessee.
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2023 (1) TMI 1400
Revision u/s 263 - Addition of bogus purchases - assessee case having been settled under DTVSV [Direct Tax Vivad Se Vishwas Act] - HELD THAT:- CIT had initiated revisional proceedings u/s.263 of the Act after certificate in Form 5 under the Direct Tax Vivad Se Vishwas Act was issued to the assessee by the appropriate authority, therefore, respectfully following case of ase of Pavan Kankur [2022 (11) TMI 1312 - ITAT BENGALURU] we quash the order passed by the Pr. CIT u/s.263 -
When the assessee had opted for the impugned assessment order passed u/s.143(3) under the Direct Tax Vivad Se Vishwas Act, therefore, the Pr. CIT could not have thereafter stepped in and disturbed such settled matter by initiating proceedings u/s.263 - Decided in favour of assessee.
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2023 (1) TMI 1399
Ex parte order passed by CIT(A) - CIT(A) did not pass the order as per the mandate of previous of section 250(6) - violation of principle of natural justice - HELD THAT:- We note that assessee could not plead his case successfully before the CIT(A). We also note that Ld. CIT(A) did not pass the order as per the mandate of previous of section 250(6) of the Act.
We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case.
Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of AO for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. We deem it fit and proper to set aside the order of the CIT(A) and remit the matter back to the file of the AO to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.
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2023 (1) TMI 1398
Rejection of Petitioners/Plaintiffs' application for summary judgment - commercial suit instituted for recovery of money with interest - whether the application for Summary Judgment of the Petitioners/Plaintiffs is required to be considered under the provisions of Order XXXVII or Order XIII A of the Code? - time limitation.
HELD THAT:- This confusion is created essentially on account of reliance placed on provisions of Order XXXVII of the Code as well as on judgment in IDBI TRUSTEESHIP SERVICES LTD. VERSUS HUBTOWN LTD. [2016 (11) TMI 1529 - SUPREME COURT] laying down broad principles on the issue of grant of leave to defend under those provisions. These submissions created an impression as if the Petitioners/Plaintiffs are pressing their claim under the provisions of Order XXXVI of the Code. However, as the submissions of the rival parties progressed it became apparent that Plaintiffs' claim is required to be considered under the provisions of Order XIII-A of the Code. To achieve more clarity, it would be profitable to make reference to the order passed by the City Civil Court on November 22, 2019 when Unregistered Summons for Judgment was filed by Plaintiffs under the provisions of Order XXXVII of the Code.
Thus, as per order dated November 22, 2019, Plaintiffs' application came to be numbered as the one for Summary Judgment under the provisions of Order XIII-A of the Code. Therefore, the provisions of Order XXXVII of the Code would not be directly relevant while examining correctness of the impugned order dated August 11, 2021 passed by the City Civil Court.
Now that a clarity is achieved about the exact provision of the Code under which application was filed for Summary Judgment, the objection raised about maintainability of Plaintiffs' application under Order XIII-A of the Code needs to be determined. Relying on provisions of sub-rule (3) of Rule 1 of Order XIII A of the Code, it is contended that since the suit was initially filed as a summary suit, the provisions of Order XIII-A of the Code would have no application to Plaintiffs' suit.
Here again, there is some degree of dispute as to whether the suit was initially filed as a summary suit or not. It was undoubtedly presented as a summary suit. It was however registered as Commercial Suit by the Court on its own. Whether act of 'presentation' would amount to 'filing' within the meaning of sub-rule 3 of Rule 1 of Order XIII A of the Code will have to be decided. Undoubtedly sub-rule 3 of Rule 1 of Order XIII A of the Code uses the word 'filed', and not 'presented' or 'registered' - No doubt Commercial Court is required to pronounce summary judgment in the event it finds that there would be no real prospect of the Defendant successfully defending the claim. It is, therefore, necessary to examine whether there is a possibility of Defendant in the present case defending the claim.
The present case would not be covered by eventuality of clause (a) of Rule 3 of Order XIII A of the Code where this court is in a position to record a finding with degree of certainty that Defendant has no real prospect of successfully defending the claim. Therefore, no case was made out for City Civil Court to pronounce a summary judgment on the claim of Plaintiffs under Order XIII Rule 6 of the Code.
The defence of defendant inter alia on the point of limitation is substantial one considering the fact that plaintiffs demanded the amount by depositing cheques in November 2015. Plaintiffs contend that the defendant requested for deferring the demand, which is required to be proved by adducing evidence as the alleged request is not in the form of a written communication. Thus, it is not possible to record a finding at this juncture that there is certain possibility of success of claim of plaintiffs. To arrive at such that finding, process of trial may have to be undertaken. Therefore, even making of a conditional order under Rule 6(1)(b) of Order XIII A of the Code is not warranted.
Thus, no error is being committed by the City Civil Court in passing the impugned order. The Petition is devoid of merits - petition dismissed.
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2023 (1) TMI 1397
Applicability of section 12A on Trust which is registered prior to 01.04.1997 - HELD THAT:- This question has been answered in favour of the appellant by the Hon’ble Supreme Court vide judgment of Industrial Infrastructure Development Corporation (Gwalior) M.P. Ltd. Vs. Commissioner of Income Tax, Gwalior [2018 (2) TMI 1220 - SUPREME COURT].
Respondent is not disputing the above said fact. This appeal is being disposed of that the case of appellant can be considered as per the judgment as at Annexure A-3.
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2023 (1) TMI 1396
Recovery of dues - mortgagor bank has priority to recover the dues against any charges of the State Government or Central Government, or not - Seeking quashment of the charge or mortgage on the property in question by the Central Sales Tax Department in the Revenue Department - seeking direction against the Revenue Authority to register and release the sale deed - petitioner is the absolute owner of the property in question with legal and valid title as once purchased under the public e-auction, or not - HELD THAT:- In the instant case, it is an undisputed fact that respondent No.5 - Bank is a secured creditor. Therefore, the Bank has valid first charge over the property in question by way of mortgage and has first right to sell the same in view of priority under Section 26E of the Act and recovered its dues from it. The petitioner is a bona fide purchaser, purchased the property in question from the e-auction held by the bank and paid full and total sale consideration to the bank and the bank has issued sale certificate in favour of the petitioner.
Considering the law laid down by this Court in KALUPUR COMMERCIAL CO-OPERATIVE BANK LTD. VERSUS STATE OF GUJARAT [2019 (9) TMI 1018 - GUJARAT HIGH COURT] and also keeping in mind the provisions of Section 26E of the SARFAESI Act, the debts due to financial institution / Bank - a secured creditor shall be paid in priority over other debts/taxes payable to the State Government. The petitioner has no concern with the dues of the State Authorities which is of the erstwhile owner. The petitioner has paid full and final sale consideration to respondent No.5 - Bank and if the State Authorities have dispute qua their dues, they can avail appropriate legal remedy before appropriate forum against the appropriate person/s. Any of the respondent has no right to disturb the right, title and interest of the petitioner qua the property in question. Under these circumstances, the petitioner cannot be left in lurch. The petitioner therefore is required to be protected.
Moreover, now it is well settled legal position that the mortgagor bank has priority to recover the dues against any charges of the State Government or Central Government, irrespective of the fact otherwise.
Petition allowed.
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2023 (1) TMI 1395
Disallowance u/s 14A - disallowance made voluntarily by the assessee - ITAT setting aside disallowance made by AO - HELD THAT:- ITAT by the impugned order has correctly held that the assessee has made a total disallowance of Rs. 30.23 crores, which is more than the dividend of Rs. 2.05 crores. Since, assessee has voluntarily made disallowance, it would meet the requirement of Section 14A of the Act and further disallowance made by the AO and confirmed by the CIT(A) is not warranted as the disallowance is higher than interest earned. Decided against the Revenue.
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2023 (1) TMI 1394
Revision u/s 263 - unaccounted investment in the three properties should be brought to tax and the assessment order should be revised - HELD THAT:- A perusal of the questions put by the Inv. Wing during the course of search reveals that the partners have admitted the cash amount paid for the purchase of the properties as their undisclosed income and offered the same to tax.
AO in the assessment order has considered the cheque amount paid and the registration expenses in the hands of the firm whereas he has not brought to tax the cash portion in the hands of the partnership firm but added the same as undisclosed income in the hands of the partners, a fact not disputed by the PCIT in the order passed u/s 263.
Once the cash amount is brought to tax in the hands of the partners as per their admission before the Investigation Wing at the time of search, the same should not have been brought to tax in the hands of the firm because that would have amounted to double taxation. Therefore, the view taken by the AO in the instant case cannot be said to be not a possible view or that a view which cannot be said to be unsustainable in law.
When the AO has taken a possible view, merely because the PCIT does not agree with the view taken by the AO, he cannot invoke the jurisdiction u/s 263.
Once the AO has brought to tax the amounts as per the sale deeds in A.Y 2015-16 & 2016-17 in the hands of the assessee firm, a fact brought on record by the PCIT himself, therefore, we are of the considered opinion that the PCIT was not justified in invoking the jurisdiction u/s 263 - we set aside the order of the PCIT and the grounds raised by the assessee are allowed.
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2023 (1) TMI 1393
Addition u/s 69C - AO and CIT(A) disallowed the opening stock on the ground that in the order transaction of the appellant with KFIL was not verifiable and only closing stock was reflected in the books of accounts where it had actually been sold outside the books, therefore, held that there was actually no closing stock of the amount included in the income of the assessee - ITAT deleted addition - HELD THAT:- ITAT correctly held profit declared by the assessee for Assessment Year 2009-10 includes the closing stock of the said amount but no set-off has been provided by treating the same at the nil value and therefore, the Tribunal held that the closing stock of Assessment Year 2009-10 is required to be treated as opening stock and could not have been disallowed by the Assessing Officer as well as by CIT(A).
No addition is require to be made on account of opening stock as the same is tax natural exercise. Therefore we hereby set aside the finding of the learned CIT(A) and direct the AO to delete the addition made by him. Hence, the ground of appeal raised by the assessee is hereby allowed.
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2023 (1) TMI 1392
Rectification of mistake - Delayed Employees' contributions to PF & ESI - HELD THAT:- As payment of PF & ESI under the respective Acts, the issue is now squarely covered by the decision of case of Checkmate Services (P.) Ltd. [2022 (10) TMI 617 - SUPREME COURT] Admittedly, once the Hon’ble Surpeme Court decides on the legality of a particular section and the interpretation thereof, such interpretation has the effect from the date of incorporation of the said proviso. This being so, admittedly, there is a mistake apparent from the record in the order of the Tribunal. Consequently, the order passed by the Tribunal stands recalled and restored to its original number. Miscellaneous application filed by the revenue is allowed.
Delayed payment in respect of employees contribution to PF and ESI -Admittedly, the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd(supra) has categorically held that the employees contribution to PF and ESI to the extent it is not paid within due date prescribed under the PF Act, is not allowable u/s. 36(1)(va) of the Act. The Hon’ble Supreme Court has also admittedly held that the provisions of section 43B of the Act would not apply to the provisions of section 36(1)(va) of the Act in respect of employees contribution. Respectfully following the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd (supra), we are of the view that the delayed payment in respect of employees contribution to PF and ESI is not allowable.
In the case of Nirakar Security & Consultancy Services Pvt Ltd. [2022 (11) TMI 69 - ITAT CUTTACK] as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the Act, the amount of delayed contribution to PF and ESI in respect of employees contribution would be treated as income in the hands of the assessee u/.s.2(24)(x) and on subsequent payment of the same, it would be a business expenditure, which can be claimed u/s. 37(1) of the Act. We are not expressing any opinion in regard to his arguments as it has not been examined by the lower authorities. Liberty is also granted to the assessee to raise all arguments as are found necessary by him before the lower authorities.
The issue in this appeal is restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity of being heard. Assessee stands partly allowed for statistical purposes.
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2023 (1) TMI 1391
Validity of reopening of assessment u/s 147 - Notice beyond the period of 4 years - capital gain on sale of land - HELD THAT:- In the instant case for A.Y.2012-13, the original assessment was finalized u/s 143(3) of the Act, after the notice under Section 142 had been issued on 7.11.2014. The impugned notice issued under Section 148 of the Act on 27.3.2019 and admittedly, it is beyond the period of 4 years from the end of A.Y.2012-13 and therefore, the requirements of the first proviso to Section 147 shall need to be necessarily satisfied for the respondent to reopen the assessment after period of 4 years from the end of the relevant assessment year. As can be noticed from the reasons recorded for reopening the assessment although the Assessing Officer has mentioned that there has been failure on the part of the petitioner to disclose the transaction fully and truly in the return of income. The fact remains that this very issue has been already scrutinized. There is no other outer source.
Assessee in the return of income had not considered the jantri value for calculating the capital gain - As been mentioned that there is failure on the part of the petitioner to disclose truly and fully all material facts, as quite apparent from the record that not only in response to the notice issued u/s 142(1) of the I.T.Act, all particulars have been furnished by the petitioner at the time of finalizing the assessment. There has been reference on the part of Assessing Officer of the short term capital gain and hence, to say that there had been non-disclosure of all particulars fully and truly is without any merit. Mere perusal of the reasons recorded for reopening indicates that this is not case of any omission or failure on the part of the assessee to disclose the material. It has furnished that in response to the notice and thereafter on 1.9.2014 which lead to finalizing the assessment on 7.11.2014 .
Resultantly, this petition warrants interference at the end of the Court. However, being aware of the fact that other issue which has been raised in relation to the provison of Section 45(3) r/w section 50C of the Act is still at large in other matters which are pending for final adjudication before this Court, the same has been kept open for being considered in those matters.
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2023 (1) TMI 1390
Validity of reopening of assessment - addition made on the basis of disallowance claimed on account of Provision of VAT - Tribunal on going through the reasons for reopening recorded the findings on fact that there was no allegation made by the assessing officer that there was failure on the part of the assessee to truly and validly disclose material facts necessary for the assessment -
HELD THAT:- From the perused the reasons as evidently clear that material already available in the books of accounts have been re-apprised by the assessing officer and notice u/s 148 has been issued. The manner of such reopening has been frowned upon in several decisions as the fundamental principles of law is that the reason should disclose failure on the part of the assessee to truly and validly disclose material facts necessary for the assessment.
In the absence of any such allegations against the assessee the Tribunal was fully justified in re-appreciating the fact and coming to the conclusion that the reopening of the assessment was bad in law. Thus we find that there is no substantial questions of law arising for consideration in this appeal.
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2023 (1) TMI 1389
TP adjustment - receivables from the Associate Enterprise (AE) - International transaction or not? - assessee has not charged its AE interest in respect of unrealized amounts outstanding (receivables from the AE) for FY 2017-18 - TPO held that receivable is international transaction and selected CUP method as most appropriate method and computed arm’s length interest rate at 13.675% being the SBI short term deposit interest rate.
HELD THAT:- As decided in the case of Xchanging Solutions Ltd. [2022 (8) TMI 1388 - ITAT BANGALORE] AR rendered in the context of a software service provider to its AE, the Tribunal has held that the receivables are linked to Software Development Service and therefore a credit period has to be allowed and that period was fixed as 90 days. The Tribunal has held that LIBOR + 300 basis points should be the rate of interest for receivables realized beyond 90 days. As agreed at the time of hearing, the limited prayer of allowing 90 days credit period and interest rate at LIBOR rate plus 300 basis points on delayed realization beyond 90 days, is accepted. The TPO will accordingly compute the ALP on the lines indicated above after affording assessee opportunity of being heard. The appeal of the assessee is thus allowed in part.
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