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Showing 61 to 80 of 1482 Records
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2023 (6) TMI 1422
LTCG on account of sale of agricultural land - whether the same is taxable or not? - HELD THAT:- Since Article 265 of the Constitution of India prohibit tax to be collected without authority of law, assessee’s ignorance cannot be a ground to refuse examination of the claim made by the assessee. Even though, inadvertently assessee offered the LTCG on sale of land, he ought to have been allowed to urge the claim before the CIT(A) because there is no estoppel against law and the Article 265 of the Constitution prohibits tax authority to collect tax without authority of law
We set aside the impugned order of the CIT(A) and admit this issue in respect of sale of land at Igatpuri on which assessee has offered LTCG which assessee is now claiming to be exempt from taxation being agricultural land. Issue raised before us is a mixed question fact and law which need to be adjudicated on the basis of relevant material/documents as to whether the assessee’s asset qualify to be agricultural land to claim the exemption or not.
Since this issue has not been examined by the AO and Assessee didn’t get an opportunity to make such a claim during assessment stage, we rely on the decision in the case of Tin Box Company [2001 (2) TMI 13 - SUPREME COURT] though in the context that if the assessee has not been granted proper opportunity before the AO, then it should be restored back to the AO for denovo assessment.
Since we have found in the present case AO didn’t examine the issue since assessee himself offered tax (LTCG) on sale of land and the assessment need to be made by AO which matters, therefore this issue is admitted by us and the same is restored back to the AO for the limited purpose of examining the claim of assessee as discussed.
Therefore, we set aside the impugned order of the CIT(A) and remand the issue of sale of land at Igatpuri back to the file of the AO and direct the AO to examine this issue de-novo after hearing the assessee in accordance to law. Assessee is at liberty to file documents/material/written submission before the AO to substantiate its claim of agricultural land and exempt income on sale of it and AO to pass order in accordance to law. Appeal filed by the assessee is allowed for statistical purposes.
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2023 (6) TMI 1421
Revision u/s 263 - treatment of lease charges for the gas pipelines in the books of account by complying with the provisions of Companies Act and the Accounting Standard vis-à-vis the allowability of the same in computing the income from profits and gains from business or profession under the provisions of the Act - sole premise on which the revisionary proceedings were invoked is that the amount has not been passed through the P&L Account and is an item of Balance sheet, therefore, it is not an allowable deduction from the taxable income of the assessee
HELD THAT:- Counsel has taken us through the audited financial statement which includes statement of P&L and demonstrated charging of depreciation and amortization, both on tangible assets and intangible assets which includes equipment under lease. Further, the charge of depreciation and amortization which has been adjusted while computing the income under the head “Profits and Gains of business or profession” in accordance with the provisions of the Act has also been substantiated by the Ld. Counsel.
As in the absence of such foundation, exercise of a suo motu power is impermissible. It should not be presumed that initiation of power under suo motu revision is merely an administrative act. It is an act of a quasi-judicial authority and based on formation of an opinion with regard to existence of adequate material to satisfy that the decision taken by the Assessing Officer is erroneous as well as prejudicial to the interests of the revenue.
We unhesitatingly hold that the impugned order is not sustainable as there is no prejudice caused to the revenue as well as it is not being erroneous in terms of provisions of sec. 263 - Assessee appeal allowed.
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2023 (6) TMI 1420
Denial of registration to the appellant u/s 12AA - Charitable activity or not? - as per revenue assessee trust has failed to furnish the self-attested copy of registered bylaws, also the assessee has failed to furnish the detail note on its activities hence the conditions of rule 17A(1)(c) were not complied by the assessee - activities of the assessee were treated as working for the benefit of its members or working for the benefit of a particular group of classes i.e. Real Estate Builder and Developers -
HELD THAT:- Assessee has submitted the information as sought by the department from time to time, but content of the information shared is not discernible from the copies of acknowledgment of online submission by the assessee having name of files attached therein, however, hard copies of the documents and information submitted before ITO(E), it is clearly imminent that the assessee has complied with all the required information as requisitioned by the department.
Since, the observation of the ld. CIT(E) was based on the wrong assumption that the information sought was not furnished by the assessee was a totally misconceived belief, thus, the same is bereft of merits and needs to be re-visited and the application of the assessee shall be considered again - Reasonable opportunity of being heard shall be granted to the assessee to represent its case. Appeal of the assessee is partly allowed for statistical purposes.
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2023 (6) TMI 1419
Disallowance of expenditure towards employees contribution to ESIC/PF u/s 36(1)(va) - HELD THAT:- As regards the justifications advanced on behalf of the assessee towards improper disallowances u/s 43B and 40(a)(ia) in respect of service tax liability and non-deduction of TDS on interest etc. we are not in a position to express any view in the absence of requisite documentary evidences. These issues are also restored to the file of AO.
The assessee shall be at liberty to adduce all legal and factual arguments before the AO for logical conclusion in the matter. AO shall determine the issues involved in accordance with law after giving proper opportunity.
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2023 (6) TMI 1418
Addition of unaccounted cash received by the assesse over and above the registered sale value of plots - as argued assessee after the survey proceedings has already disclosed profit @15% of the turnover to coverup the discrepancy, only a percentage should be adopted for the cash receipts and the entire amount cannot be added - HELD THAT:- It is an admitted fact that the assessee in the revised return filed on 30.12.2015 has declared profit @ 15% on the turnover despite no incriminating evidences being found, a statement made during the course of assessment proceedings and not controverted by the AO.
The case of the AO is that the earlier disclosure made for the reasons best known to the assessee cannot be treated as permanent immunity in all unaccounted payments.
Contention of the assessee that the unaccounted receipt from Mr. Mazaharuddin are only advances during the impugned A.Y and the registrations were completed in the A.Y 2009-10 and such income was also offered to tax in A.Y 2009-10 was summarily rejected by the CIT (A) in absence of balance sheet of the respective A.Y.
Observation of the CIT (A) that the assessee has to explain the unaccounted payments made to Shah Group during the impugned A.Y. During the course of hearing before the Tribunal, the learned Counsel for the assessee drew the attention of the Bench to the Annexure enclosed to the assessment order and demonstrated before us certain sale deeds for which cash was received during the impugned A.Y, were actually registered in A.Y 2009-10 and therefore, these are only advances. It is also his submission that given an opportunity, he can substantiate that there is no unaccounted receipt during the year and the earlier amount of advance has been offered to tax in the A.Y 2009-10.
Considering the fact that the assessee has declared additional income @ 15% of the turnover to explain the source of certain payments during the impugned A.Y and considering the fact that certain sale deeds were registered in A.Y 2009-10 for which the assessee has received certain amounts which according to him are advances received during the year, therefore, we deem it proper to restore the issue to the file of the AO with a direction to adjudicate the issue afresh. The grounds raised by the assessee are accordingly allowed for statistical purposes.
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2023 (6) TMI 1417
Denial of deduction u/s 80P(2)(a)(i) - assessee society is doing banking business, therefore, he treated it as a Co-operative Bank - HELD THAT:- We note that assessee is a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 and claims to be as a Primary Agricultural Credit Co-operative Society. The assessee society asserts that it provides credit facilities to its members; and its income earned while carrying on the business of providing credit facility to its members are eligible for deduction u/s 80P(2)(a)(i) of the Act.
We note that the AO didn’t had the benefit of the decision rendered by the Hon’ble Apex Court in the case of Malvilayi Service Co-operative Bank Ltd. [2021 (1) TMI 488 - SUPREME COURT] Therefore, in the interest of justice and equity, the issue of claim for deduction u/s 80P(2)(a)(i) of the Act is restored back to file of AO with a direction to examine afresh the claim of assessee in the light of decision in Malvilayi Service Co-operative Bank Ltd (supra). Therefore, the impugned order of Ld. CIT(A) is set aside, and issue is restored back to the file of the AO and the AO is directed to decide the claim of the assessee in respect of deduction claimed u/s 80P(2)(a)(i) of the Act accordingly.
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2023 (6) TMI 1416
Revision u/s 263 - verification of application of provisions of section 56(2)(x) -effective date of property transfer.effective date of property transfer - consideration the Assessee had purchased two immovable properties below the Stamp duty value as determined by the Stamp Valuation authorities -effective transfer had taken place in the earlier year or this year? - HELD THAT:- We note that property was already purchased in the earlier years (1/2 share in F. Y. 2003-04 and the rest ½ share in F.Y.2010-11) and the entire payments were also made by account payee cheques in these relevant years and possession was taken. The documents executed during the assessment year under consideration, were in the nature of correction of defects of the title of the property.
To correct the defect in the title of the property does not mean that assessee has purchased the new property in the year under consideration.
We also note that possession of the property was taken in the earlier years and the entire payments were also made in the earlier years and, therefore, effective transfer had taken place in the earlier years, hence the provisions of section 56(2)(x) of the Act are not applicable to the assessee under consideration. We also observe that provisions of section 56(2)(x) of the Act are applicable with effect from 01.04.2017, which are not applicable to the assessee under consideration as the payments by cheques were made by assessee in F.Y. 2003-04 and the possession was also taken in Financial Year (FY) 2003-04 and the documents were also registered in Financial Year (FY) 2003-04, later on, to correct the defect in the title of the property, the assessee has deposited additional stamp duty. Just to correct the defect in the title of the property does not mean that assessee has purchased new property in the year under consideration. Thus, we note that order passed by the assessing officer should not be erroneous.
Transfer of property as per the provisions of section 2 (47) of the Act (Purchase of property) had already taken place in the A.Y. 2004-05 by way of full payments by cheques as well as possession thereof. Since the property was already transferred in earlier year, the provisions of section 56(2)(x) of the Act were not invoked by assessing officer while passing order u/s 143(3) of the Act. We also note that assessing officer conducted sufficient enquiry during the assessment proceedings about the issue raised by ld PCIT, by way of issuing notices to the assessee.
AO had information regarding purchase of balance share of the said plot and the issue was raised during assessment proceedings, regarding application of provisions of section 56(2)(x) of the Act, however, after considering the reply of the assessee dated 24.06.2020 (page no. 207 & 208 of the paper book), no addition was made by the assessing officer. Therefore assessment order is not erroneous, as the provisions of section 56(2)(x) were duly considered for the balance 1/2 share of property. So far as the original 1/2 share of the property is concerned, the payment was made by cheques in the A.Y. 2004-05, the same was not required to be looked into. We note that the provisions of section 56(2)(x) of the Act are not applicable in the year under consideration and therefore, order passed by the assessing officer is not prejudicial to the interest of revenue.
When the AOadopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue “unless the view taken by the Assessing Officer is unsustainable in law”. See Apex Court case in Malabar Industries Ltd. [2000 (2) TMI 10 - SUPREME COURT]
As transfer of property as per the provisions of section 2 (47) of the Act had already taken place in the A.Y. 2004-05 and ½ property in F.Y.2010-11, by way of full payments by cheques as well as possession thereof. The provisions of section 56(2)(x) of the Act are not applicable in the year under consideration. A mere observation that no proper details have been obtained, cannot be sufficient to come to a conclusion that the AO did not make proper and adequate inquiries which he ought to have made - Decided in favour of assessee.
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2023 (6) TMI 1415
Miscellaneous Application seeking recall of the Tribunal's order to adjudicate ground of appeal no.9 related to provision for expenses - Allowability of provision as allowable expenditure - Non consideration of the Hon’ble DRP’s direction for granting relief in respect of provision for expenses - Provision for Freight and Material Handling Charges have been made on a scientific basis or on the basis of previous years trends ? - HELD THAT:- We are satisfied that inadvertently the ground of appeal no.9 had not been adjudicated by this Tribunal. Therefore, it is a fit case to recall the matter for the limited purpose of adjudication of ground of appeal no.9. Thus, the impugned order [2021 (11) TMI 1124 - ITAT PUNE] is recalled and the Registry is directed to fix the appeal for hearing of adjudication of ground of appeal no.9 for 10th August, 2023. Miscellaneous Application filed by the assessee stands allowed.
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2023 (6) TMI 1414
Addition u/s 36 - delayed deposit of EPF and ESIC - HELD THAT:- The issue involved in Ground No. 1 regarding delayed deposit of amount collected towards employees' contribution but the same is paid before the due date of filing of return. The Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] held that delayed deposit of the contribution EPF & ESIC beyond the stipulated period prescribed in the respective Acts are not allowable. No infirmity in the order of the CIT(A) in confirming the addition u/s 36 - Decided against assessee.
Addition u/s 43(B) for delay deposit of EPF, ESIC and service tax - HELD THAT:- It is the specific case of the assessee that the amount of EPF, ESIC was deposited within stipulated time and rest of service tax payable was deposited in the Financial Year 2017-18, the said amount of service tax payable was never a part of profit and loss account and as such the Section 43(B) of the Act is not applicable on the said amount.
Considering the said claim of the Assessee and in the facts and circumstances, we deem it fit to restore the issue involved in Ground No. 2 to the file of CIT(A) for de-novo adjudication. Accordingly, without expressing any opinion on the merit, the issue in Ground No. 2 of the Assessee is remanded to the file of Ld. CIT(A) with a direction to the assessee to substantiate the claim - Ground No. 2 is partly allowed for statistical purpose.
Addition u/s 43(B) for delayed deposit of GST payable amount on service - It is the specific case of the assessee that the amount has been added u/s 43(B) of the Act was never a part of profit and loss account and the same has been declared in audit report Point No. 26(i)B(b) of the Chartered Accountant and such as Section 43(B) is not applicable. Considering the above ground raised by the assessee, since the CIT(A) has not considered the said issue and no specific finding given thereon, without expressing any opinion on the merit, we deem it fit to restore the issue to the file of the CIT(A) with a direction to the assessee to substantiate the said contention made in the Ground No. 1 and the Ld.CIT(A) is directed to dispose the same in accordance with law, accordingly, we partly allow Ground No. 1 of the assessee for statistical purpose.
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2023 (6) TMI 1413
Additions made under the head unaccounted cash found and under the head unaccounted stock found during the course of survey and disallowance u/s 80C - CIT(A) deleted addition - HELD THAT:- From the perusal of the order of Ld. CIT(A), it is noted that he has placed reliance on confirmation letters and income-tax returns of the tenants in respect of which it was claimed that their stock was also lying at the business premises where the survey was conducted in order to explain the discrepancy found in the stock in the course of survey. Similarly, in respect of cash found during the survey, the cash book was furnished before the ld. CIT(A). Also, the documentary evidence for the premium paid to claim deduction u/s. 80 C was presented before the Ld. CIT(A). In the interest of justice and fair play, Ld. CIT(A) ought to have given a reasonable opportunity of being heard to the ld. AO so as to examine and verify these documents and records and obtain a remand report before disposing of the appeal by giving relief to the assessee.
Addition towards difference in the total credit entry in the bank account and the gross sales as reported by the assessee in the P&L Account which is on account of VAT/ GST collection - HELD THAT:- From the perusal of the order of Ld. CIT(A), we note that assessee has elaborately explained his case by explaining the methodology of accounting adopted in respect of sales and VAT in his books of account.
CIT(A) has given his finding after considering the submissions made by the assessee and allowed the relief.
Cognizance of section 145 r.w.s.145A(ii) and relevant ICDS IV for revenue recognition has not been taken into consideration which have become applicable from AY 2017 -18, the year under consideration before us i.e. AY 2017-18. Therefore, in the interest of justice and fair play, finding force in the submissions made by Sr. DR, we remit the matter back to the file of Ld. CIT(A) to adjudicate afresh on this issue by taking into consideration the provisions of section 145 read with section 145A(ii) and relevant ICDS IV.
Appeal of the revenue is allowed for statistical purposes.
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2023 (6) TMI 1412
Delayed employee contributions towards PF/ESI - HELD THAT:- Section 36(1)(va) clearly stipulates the conditions for allowing deduction and clearly stipulates that the deduction in respect to income as defined under section 2(24)(x) shall be allowed provided the said employee contribution is deposited by employer with the relevant fund governing PF/ESI within the time prescribed under relevant statute governing PF/ESI. Thus, this contention of the assessee is rejected that deemed income u/s 2(24)(x) cannot be brought to tax under Chapter IVD.
We have also observed that this issue of delayed deposit of employee contribution towards PF/ESI beyond the time prescribed under the relevant statute governing PF/ESI is no more res integra as Hon'ble Supreme Court has already decided the issue in favour of Revenue in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] where in Hon’ble Supreme Court has strictly construed the provisions of Section 36(1)(va) and has held that in case employee contribution of PF/ESI deducted by employer is deposited late beyond the time prescribed under the relevant statute governing PF/ESI, no deduction shall be allowed keeping in view provisions of Section 36(1)(va) of the 1961 Act.
It will be relevant at this point of time to refer to decision of ITAT, Chennai Bench, in the case of M/s Electrical India [2022 (11) TMI 1363 - ITAT CHENNAI] wherein this issue is decided in favour of Revenue. Thus, this appeal filed by the assessee lacks merit and stand dismissed. We order accordingly.
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2023 (6) TMI 1411
Unexplained investment U/s. 69 and levying tax U/s. 115BBE - cash deposited during the demonetization period - Appellant has produced the ownership of agricultural lands yield of agriculture produce, selling rates of agriculture produce without any other adverse materials - HELD THAT:- Admittedly, the assessee had accepted the SBNs which were no longer a legal tender and were to be explained in accordance with the relevant circular mentioned hereinabove. These instructions gives a hint regarding what kind of investigation, enquiry, evidences that the AO is required to take into consideration for the purpose of assessing such cases.
Instructions dated 09/08/2019 speaks about the comparative analysis of cash deposits or cash sales, month wise cash sales and cash deposits. It also provides that whether in such cases the books of accounts have been rejected or not where substantial evidences of vide variation be found between these statistical analyses. Therefore, it is very important to verify whether a case of the assessee falls into statistical analysis, which suggests that there is a booking of sales, which is non-existent and thereby unaccounted money of the assessee in old currency notes (SBN) have been pumped into as unaccounted money.
Another instruction dated 21/02/2017 requires that the assessing officer to verify basic relevant information e.g. monthly sales summary, relevant stock register entries and bank statement to identify cases with preliminary suspicion of back dating of cash and is or fictitious sales. The instruction is also suggested some indicators for suspicion of back dating of cash else or fictitious sales where there is an abnormal jump in the cases during the period November to December 2016 as compared to earlier year.
It also suggests that, abnormal jump in percentage of cash trails to on identifiable persons as compared to earlier histories will also give some indication for suspicion. Non-availability of stock or attempts to inflate stock by introducing fictitious purchases is also some indication for suspicion of fictitious sales. Transfer of deposit of cash to another account or entity, which is not in line with the earlier history. Therefore, it is important to examine whether the case of an assessee falls into any of the above parameters are not.
The assessee is directed to establish all relevant details to substantiate its claim in line with the above applicable instructions as applicable to the present facts of assessee. We are aware of the fact that not every deposit during the demonetization period would fall under category of unaccounted cash. However the burden is on the assessee to establish the genuineness of the deposit in order to fall outside the scope of unaccounted cash. The Ld.AO shall verify all the details/evidences filed by the assessee based on the above direction and applicable instruction, to the facts and circumstances of the present assessee and to consider the claim in accordance with law. Appeal filed by the assessee stands partly allowed for statistical purposes.
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2023 (6) TMI 1410
Reopening of assessment u/s 147 - rejecting petitioner’s objections - HELD THAT:- The order to be passed shall be a reasoned order dealing with every objection of petitioner and before passing any such order, a personal hearing shall be granted to petitioner, notice whereof shall be communicated atleast 5 working days in advance.
If JAO is going to rely on any judgment, a list thereof shall be provided to petitioner along with the notice for personal hearing so that petitioner will be able to deal with/distinguish the same during the personal hearing.
If petitioner wishes to file written submissions stating what transpired during the personal hearing, the same to be filed within 3 days from the personal hearing. Petition disposed.
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2023 (6) TMI 1409
Classification of service - Erection, Commission or Installation Service, Commercial or Industrial Construction Service, Construction of Complex Service or works contract service - HELD THAT:- The services have been supplied by the appellants along with materials, which are not disputed by the Adjudicating Authority.
In that circumstances, the activity undertaken by the appellant merits classification under the category of “Works Contract Service”. For prior to the period 01.06.2007, no service tax was payable by the appellant as held by the Hon’ble Supreme Court in the case of LARSEN AND TOUBRO LIMITED VERSUS COMMISSIONER [2015 (8) TMI 1583 - SC ORDER].
It is further noted that for the period post 01.06.2007, the proper classification of the activity undertaken by the appellant merits classification under the category of “Works Contract Service”. The show-cause notice has not been issued to the appellant to demand under “Works Contract Service”.
All the demands against the appellant are not sustainable - the impugned order is set aside - appeal allowed.
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2023 (6) TMI 1408
Classification of imported goods - Metal Clad Printed Circuit Boards (MCPCBs) for manufacturing of LED Lamps - to be classified under tariff item 8534 00 00 of First Schedule to the Customs Tariff Act, 1975 or under tariff item 9405 99 00? - HELD THAT:- The issue involved in the present appeals is no more res integra in view of CROMPTON GREAVES CONSUMER ELECTRICALS LTD VERSUS COMMISSIONER OF CUSTOMS (NS-V) [2022 (9) TMI 1130 - CESTAT MUMBAI] passed by this Tribunal in the case of the appellant themselves. Since the issue regarding classification of the disputed goods is no more open for any debate in view of the order passed by the Tribunal, we are of the view that the impugned orders passed by the learned Commissioner (Appeals) cannot be sustained for judicial scrutiny.
Thus, by setting aside the impugned orders, the appeals are allowed in favour of the appellants.
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2023 (6) TMI 1407
Validity of order u/s 263 directing the AO to exclude interest u/s 244A granted to it on excess refund claimed through a revised return - as argued Commissioner in Section 244A(2) is the final authority - whether Tribunal was right in cancelling the order made u/s 263 ? - CIT(A) felt that the delay in claiming enhanced refund was attributable to respondent and accordingly interest u/s 244(A) of the Act was not allowable on the refund for 11 months, i.e., from 1st April 2008 to 19th March 2009.
HELD THAT:- As per Sub Section (2) of Section 244(A) if the proceedings resulting in the refund are delayed for the reasons attributable to the assessee, the period of delay so attributable to the assessee shall be excluded from the period for which interest is payable. There is nothing in the findings of the CIT as to how respondent delayed the proceedings that resulted in the refund or what were the reasons that could be attributable to respondent.
It is true that respondent had initially filed return of income on 30th October 2007 declaring total income of Rs.997,10,30,681/- and subsequently on 19th March 2009 revised return declaring income of Rs.615,19,97,000/- was filed. The assessment was completed u/s 143(3) of the Act on 23rd March 2009 assessing the total income at Rs.19,04,69,88,000/-. Against the assessment order respondent preferred an appeal and the CIT(A) vide an order dated 15th June 2011 decided some issues in favour of respondent in giving effect to CIT(A)’s order by the AO on 7th March 2012 and it resulted in refund of Rs.377,95,44,631/-. Therefore it cannot be stated that proceedings resulting in the refund were delayed for reasons attributable to respondent wholly or in part.
Moreover, the ITAT has also, relying on a judgment of this court in State Bank of India vs. DCIT-2 [2012 (3) TMI 413 - ITAT MUMBAI] and came to a conclusion that the order passed by the Assessing Officer was neither erroneous nor prejudicial to the interest of revenue and the AO has allowed the amount of interest in question taking one of the possible view. The tribunal has held that where two views are possible and the AO takes one of the possible views, the CIT(A) could not have exercise revisional jurisdiction u/s 263 of the Act.
Tribunal having come to the factual conclusion on the basis of materials on record, no question of law arises.
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2023 (6) TMI 1406
Applicability of provisions of Section 206AA - deducting of tax at higher rate in the absence of Permanent Account Number to the payments made to Non Resident – Companies - ITAT confirmed non applicability of provision of 206AA on the ground that benefit of DTAA is available to the assessee - assessing authority rightly held that assessee is to be in default for non-compliance of Section 195 of the Act by holding that Section 206AA of Act is applicable as PAN was not quoted in respect of the payers - Delay filling appeal before High Court
HELD THAT:- To a pointed question as to whether the issues raised in this appeal are covered by the decision of this court in The Commissioner of Income-tax and Another Vs. M/s.WIPRO Ltd [2023 (1) TMI 173 - KARNATAKA HIGH COURT] Revenue fairly submitted that questions raised in this appeal have been considered in the aforesaid decision.
This appeal is filed belatedly after 273 days along with I.A.for condonation of delay. Having considered the appeal on both delay and merits, questions of law are answered in the favour of assessee and against the Revenue.
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2023 (6) TMI 1405
Addition u/s. 36(1)(va) - delayed deposit of employees’ contribution towards PF & ESI - intimation passed u/s 143(1) - HELD THAT:- We find that Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] has held that the contribution by the employees to the relevant funds is the employer’s income u/s 2(24)(x) of the Act and the deduction for the same can be allowed only if such amount is deposited in the employee’s account in the relevant fund before the date stipulated under the respective Acts.
Thus the deduction u/s 36(1)(va) of the Act can be allowed only if the employees’ share in the relevant funds is deposited by the employer before the due date stipulated in respective Acts. We find that identical issue of disallowance of delayed deposit of PF/ESI dues in the intimation issued u/s 143(1) of the Act arose before the Pune Bench of Tribunal in the case of Cemetile Industries [2022 (12) TMI 354 - ITAT PUNE] - Appeal of the assessee is dismissed.
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2023 (6) TMI 1404
Revocation of registration granted u/s 12AA - proceedings of cancellation were initiated against the assessee trust as inspired by the report of ld. CIT(E), Kolkata wherein it is informed that the assessee society has received bogus donations from 3 of entities - HELD THAT:- Submission of the assessee that the same trust has given donation to Sh. Jainarayan Hariram Goel Charitable Trust [2021 (8) TMI 421 - ITAT RAIPUR] wherein name of Hebicure Healthcare BioHerbal Research Foundation wherein it was the observation that a statement cannot be used as evidence since the statement was never supplied to the assessee nor the assessee was allowed an opportunities to cross examine such person whose statement is being sought to be relied upon by the ld. CIT(E). Once these documents are ignored, there remains no material with the department to hold that the assessee received the donation from M/s Hebicure Healthcare Bio-Herbal Research Foundation, Kolkata in lieu of the cash. Therefore, on the basis of such information registration could not be withdrawn.
The assessee’s contention has got merit which is further substantiated by the department by granting them registration u/s 12A(1)(ac)((vi) & 80G(5)(iv) of the Income Tax Act on 10.03.2022. No substance in the contention of the department and therefore, are of the view that once the department itself has accepted that the assessee’s activities are genuine, the cause for invoking provisions of section 10AA(3), effecting the cancellation of registration u/s 12A becomes nullified and therefore, considering the explanations and decisions in favour of various donors allegedly involved in the transactions of bogus donations who have granted donations to the assessee trust, we are of the opinion that the order of cancelation by ld. CIT(E) cannot survive, since the registration is granted to the assessee society having no change in its activities, byelaws and objects in a later year. We therefore, set aside the order of ld. CIT(E) and direct to restore registration u/s 12A of the society.
Approval u/s 10(23C)(vi) - Since, the provisional registration u/s 12AA(i)(ac)(vi) and 80G(v)(iv) of I.T. Act has already been granted by ld. PCIT on 10.03.2022, therefore, the activities of the assessee societies are considered as genuine. In back drop of aforesaid discussion, we are inclined to set aside the order of ld. CIT(E) withdrawing the approval to the assessee society u/s 10(23C)(vi) dated 15.02.2019 and direct ld. CIT(E) to restore approval u/s 10(23C)(vi) to the assessee society. In the result ground of the appeal in the instant appeal of the assessee are allowed.
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2023 (6) TMI 1403
Capital gain computation - applicability of provision of section 50C - valuation of property for capital gains computation - whether the stamp duty valuation has to be taken on the date of agreement to sell or on the date of the sale deed since both the dates are falling within the same financial year? - HELD THAT:- It is not in dispute that part of the sale consideration was received before the date of the agreement for transfer. It is not in dispute that the stamp duty was actually paid on the date of agreement to sell as per the circle rate prevailing at that point of time. An identical issue was considered by the coordinate Bench in the case of Amit Bansal [2018 (11) TMI 1699 - ITAT DELHI] held that the proviso to section 50C(1) introduced by the Finance Act, 2016 can be construed as clarificatory in nature and can be applied on pending matters. The various other decisions relied on by the Id. counsel for the assessee also support the case of the assessee that where the date of the agreement fixing the amount\of consideration and the date of registration regarding the transfer of the capital asset in question are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of the agreement is to be taken for the purpose of full value of consideration. Therefore;' accept the argument of assessee in principle and restore the issue to the file of the AO with a direction to verify necessary facts and decide the issue in the light of my above observation directing to adopt the circle rate on the date of agreement to sell in order to compute the consequential capital gain.
The appeal of the revenue is accordingly dismissed.
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