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2024 (1) TMI 1276 - ITAT MUMBAI
Addition u/s 69A - unaccounted cash loan and interest thereon - addition based on statement recorded of entry provider but was later retracted - in the course of search, a diary has been seized wherein few entries have been recorded and the Assessee’s name is also appearing in the same diary in coded word -
HELD THAT:- It is an admitted fact that the AO has not entertained the Assessee’s request for cross examination of Entry provider [Shri Nilesh Bharani / M/s Evergreen Enterprises] and also it is a fact that Shri Nilesh Bharani subsequently retracted his statement. Therefore, his statement made earlier become doubtful as claimed by the Assessee and cannot be relied as substantive evidence.
Even otherwise, we have failed to understand that how the name as mentioned in the said diary, as “NENSIBHI ELLA” can be attributed to the Assessee’s name. Further, how the coded amount of Rs. 32,500 can be construed as Rs. 3,25,000,00/-. How the Assessee is connected with the said narration of entries written in diary. As per Assessee’s claim, the mobile number noted in said diary is even otherwise do not belong to the Assessee and the AO also failed to verify the owner of the said number to connect with the Assessee.
Thus retracted statement of Shri Nilesh Bharani/ M/s Evergreen Enterprises who otherwise neither named nor specified the role and also not connected the Assessee specifically and the aforesaid facts/entries made in the diary as noted above by us, in fact, is not at all substantive material to make and sustain the addition as done by the authorities below in this case and, therefore, we are inclined to delete the addition. Consequently, the addition under consideration stands deleted. Decided in favour of assessee.
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2024 (1) TMI 1275 - ITAT RAIPUR
Delayed deposit of employees share of contribution towards ESI/PF - Intimation u/s.143(1) - whether prior to the judgment of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] aforesaid claim for deduction could not have been summarily disallowed u/s. 143(1)? - HELD THAT:- As prior to the judgment of Checkmate Services Pvt. Ltd. Vs. CIT-1 (supra), the aforesaid claim for deduction could not have been summarily disallowed u/s. 143(1) of the Act.
As decided in GURMEET SINGH HORA [2023 (8) TMI 1383 - ITAT RAIPUR] as held no such disallowance of the delayed deposit of the employee’s share of contribution towards labour welfare fund could have been made in the hands pf the assessee company while processing of its return of income u/s. 143(1)(a)
As the facts and issue involved in the present appeal on the first principle, i.e., as to whether or not prior to the judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] CPC, Bengaluru was well within its right in disallowing the assessee’s claim for deduction of delayed deposit of employees share of contributions towards ESI/PF vide an intimation issued u/s. 143(1) of the Act, remains the same, therefore, we follow the same.
We, thus, in terms of our aforesaid observations, set-aside the order passed by the CIT(Appeals) wherein he had upheld the order passed by the CPC/A.O u/s. 154 of the Act, and thus, declined the assessee’s claim for deduction of delayed deposit of employees share of contribution towards ESI/PF and vacate the addition made by the A.O. Appeal of the assessee company is allowed.
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2024 (1) TMI 1274 - DELHI HIGH COURT
TP Adjustment - MAM - selection of comparables - HELD THAT:- We find that the appeal raises the following substantial questions of law:-
a) Whether the Income Tax Appellate Tribunal [‘ITAT’] has erred in holding that the CIT(A) erred in making 5% adjustment?
b) Whether the ITAT has erred in holding that the CIT(A) was precluded from applying internal CUP as the most appropriate method applicable to 8K Cards and could have only applied the Re-Sale Price Method?
c) Whether the ITAT has erred in upholding the method of benchmarking of each product segment of the Appellant against the comparable companies at entity level?
d) Whether the ITAT has erred in entirely ignoring the alternative submissions made vide letter dt. 18.9.2021 under Rule 27 of the ITAT Rules, 1962 regarding the incorrect selection of comparables?
The respondents are accorded liberty to file their Written Submissions on the record within a period of three weeks from today. Those submissions shall refer to the pdf page numbers of the digital record of the Court wherever so required.
Let the appeal be called again on 01.05.2024.
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2024 (1) TMI 1273 - ITAT COCHIN
Deduction u/s. 80P(1) r/w s. 80P(2)(a)(i) - assessee’s, a society registered as a primary agricultural credit society (PACS) (under the Kerala Co-operative Societies Act, 1969 – Kerala Act) - claim denied in view of section 80P(4), i.e., as it stands after its amendment by Finance Act, 2006, w.e.f. 01.04.2007 - HELD THAT:- The assessee, in view of it’s lending profile, does not, sure, qualify to be PACS in terms of section 80P of the Act. So, however, nothing turns thereon as, even as explained in Mavilayi Service Co-operative Bank Ltd. [2021 (1) TMI 488 - SUPREME COURT] reliance on which by the assessee was repelled by the Revenue authorities, the nature of credit, i.e., agricultural or non-agricultural, is not a condition of section 80P(2)(a)(i) of the Act. As long as, therefore, income flows from the provision of credit to it’s members, the same would be liable for deduction u/s. 80P(1) of the Act. The question that nevertheless would be relevant in this context is if the assessee is indeed a cooperative society u/s. 2(19) of the Act, an aspect we advert to later.
Assessee is in the business of banking - Any member of the public can, as explained therein, become a ‘member’ on paying a nominal sum, which in fact is insisted upon as a practice, making co-operative societies, as the assessee, essentially public institutions. The legal basis for the same is found in sections 58 to 60 of the Kerala Act. Further, by providing membership to all on payment of a nominal fee, without extending them the rights and privileges of a member, there is thus, clearly, acceptance of deposits from and, equally, lending to, the members of the public, i.e., for all practical purposes, even as explained in The Karannur Service Co-op. Bank Ltd. [2023 (12) TMI 1254 - ITAT COCHIN] - So, however, again, nothing turns thereon inasmuch as the same is not an inhibiting factor; the income there-from being equally eligible, i.e., as on provision of credit to it’s members, for deduction u/s. 80P(1) inasmuch as s. 80P(2)(a)(i) treats the two activities at par, being, rather, more beneficial to the assessee as it extends deduction to income from non-members also.
If the assessee, ostensibly a co-operative society u/s. 2(19) of the Act inasmuch as it is a society registered under the Kerala Act, is a ‘co-operative bank’, a term which again stands defined u/s. 80-P with reference to BRA - We refer only to the definition of a ‘primary cooperative bank’, and not of ‘state cooperative bank’ and ‘central co-operative bank’ inasmuch as the same, defined u/s. 5(ccvii) with reference to NABARD Act, are defined in the latter as principal societies for financing other co-operative societies in the respective state and district respectively, qua which there is no claim, so that the assessee could be a cooperative bank only by virtue of being a primary cooperative bank, i.e., by definition.
The assessee’s bye-laws, which are, therefore, relevant for ascertaining it’s status as a primary cooperative bank, are not on record. The same – in their relevant part, have neither been reproduced by the AO – claiming the assessee to be a primary co-operative bank and, thus, a co-operative bank in his order, nor by the ld. CIT(A) per the impugned order confirming his order, nor indeed placed on record by the assessee, disputing their findings. The matter, therefore, would require travelling back to the file of the AO for the purpose.If the assessee is a primary co-operative bank, it is a co-operative bank by definition, excluded u/s. 80P(4) w.e.f. AY 2007-08.
The matter, accordingly, for proper determination of the issue arising, in terms of this order, is restored to the file of the AO, who shall decide the issue/s arising in accordance with law per a speaking order upon hearing the assessee, duly considering each of it’s arguments/contentions. Assessee’s appeal is allowed for statistical purposes.
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2024 (1) TMI 1272 - CESTAT HYDERABAD
Seeking refund in cash as CENVAT Credit cannot be utilized - entire amount of differential customs duty (basic customs duty + CVD + SAD) has been paid by the appellant after about nine years after the initial date of imports, on account of non-fulfilment of Export obligation - whether CVD+SAD as part of Custom Duties paid subsequent to 01.07.2017 on account of non-fulfilment of Export Obligation, are eligible for cash refund when the Appellant cannot take these amounts as Cenvat Credit?
HELD THAT:- In the case of OSI SYSTEMS PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX RANGAREDDY - GST [2022 (9) TMI 801 - CESTAT HYDERABAD], this Bench while dealing the issue as to whether the Service Tax paid on RCM basis subsequent to 01.07.2017, which otherwise is eligible as Cenvat Credit, can be taken as cash refund u/s 142(3) of CGST Act, 2017 was considered and has held 'no unjust enrichment is attracted as the appellant have admittedly paid service tax in August, 2018 out of their own pocket.' - the above case law is also squarely applicable to the facts of the present case.
Admittedly, the Department was not aggrieved by the Order-in-Original passed and no further appeal was preferred by the Department before Commissioner (Appeals). Further, there are force with the appellant’s arguments that the entire amount in question was paid almost after nine years from the date of imports. Therefore even on hypothetical basis there would be no possibility of the appellant passing on the customs duty burden on any other party. Therefore, the Revenue arguments on this issue is rejected.
The impugned order is set aside - Adjudicating Authority is directed to grant the refund along with interest, which is to be calculated from the initial date of filing the refund claim - appeal allowed.
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2024 (1) TMI 1271 - ITAT CHANDIGARH
Addition u/s 69A and 69B - discrepancies noticed in excess cash, excess stock and recoverable in Survey u/s 133A - surrendered amount treated as income from other sources(unexplained investment) as against declared business income by assessee - HELD THAT:- Assessee has been confronted with not just the discrepancy so found during the course of survey but the nature and source thereof during the course of survey proceedings and it is clearly emerging that the source of such income is from its business operations. There is a clear statement of the partner of the assessee that the advances are related to its business, however since the same have not been recorded in the books of account, he has offered the same to taxation. Similarly, the stock physically found has been valued and then, compared with stock as recorded in the books of account, thus, there is clear nexus of stock with the Assessee's business. The statement of the partner of the assessee is available on record and related documents so found during the course of survey are stated to be in possession of the Revenue authorities. Apparently, the AO has failed to take into consideration the statement of the partner of the assessee recorded during the course of survey holistically, and other documents and findings of the survey team which are very much part of the records
The mere fact that survey/search proceedings have been initiated at the business premises of the Assessee doesn't mandate the Assessing officer to automatically invoke the deeming provisions and before invoking the deeming provisions, he has to call for the explanation of the Assessee and only where the explanation so offered is not found satisfactory, he can proceed and invoke the deeming provisions.
We find that in the present case, the difference in stock found by the authorities has no independent identity and it is part and parcel of the entire stock. Therefore, it cannot be said that there is an undisclosed asset which existed independently and thus, what has been declared before the Department is received from business and it is not any investment, since it cannot be co-related with any specific assets. The difference, therefore, should be treated as the undeclared business income of the assessee.
Following the said decision of Shri Ram Narayan Birla [2016 (9) TMI 1354 - ITAT JAIPUR] has taken a similar view holding that the excess stock so found during the course of survey was part of the stock and the Revenue has not pointed out the excess stock has any nexus with any other receipts other than the business being carried on by the Assessee.
Thus we hold that the income surrendered by the assessee during the survey cannot be brought to tax under the deeming provisions of Section 69A and 69B of the Income Tax Act and the same has been rightly offered to tax by the assessee under the head of business income. In the absence of applicability of the deeming provisions, there is no question of the provisions of Section 115BBE. Assessee appeal allowed.
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2024 (1) TMI 1270 - ITAT JODHPUR
Validity of reopening of assessment proceedings u/s 147 - reasons to believe - claim of exemption u/s 10(38) denied - borrowed satisfaction of another AO or Independent application of mind - HELD THAT:- CIT(A) has rightly upheld the initiation of the proceedings, by observing that the inputs received from the Investigation Wing constituted fresh material for the AO in order to reopen the case by issue of notice u/s 148 and that the AO has recorded reasons and had also taken due approval of PCIT. Therefore, the contention raised by the appellant has no reasonable basis. Accordingly, we hold that the information received from investigation wing would be forming a valid basis for initiation of reopening proceedings u/s 147 of the Act. Accordingly, the ground regarding validity u/s 147 is dismissed.
Denial of Exemption u/s 10(38) - unexplained cash credit u/s 68 - It is seen that all the necessary documents and details were duly submitted before the authorities below, which were neither controverted or disproved. We are of the considered view that the assessee has discharged the primary onus casted on him in terms of claim of exemption of long-term capital gains u/s 10(38) of the Act by establishing the genuineness of transaction of purchase and sale of shares and satisfying the requisite conditions specified therein and therefore, the gains so arising on sale of shares has been rightly claimed as exempt u/s 10(38) of the Act.
For instance, in the case of another assessee Shri Mohd. Sharif, Pali (Rajasthan) and Abhay Kumar Kuldeep Kumar HUF, on similar facts and circumstances, department has reopened assessment u/s 148 for the same reasons as of the assessee but assessments were closed by allowing exemption u/s 10(38) on sale of shares of M/s ACI Infocom Ltd. In our view, the action of the authorities below not allowing exemption u/s 10(38) to the assessee on the same facts and circumstances is bad in law and against the principles of natural justice.
The order of the Ld. CIT(A) is infirm and perverse to the facts on record in rejecting the appellants claim of exemption u/s 10(38) of the Act. In view of peculiar facts of the case, we set-aside the order of the learned CIT(A) and as such allow the claim of the assessee under section 10(38) of the act. The 2nd issue of exemption u/s 10(38) of the act is thus decided in favour of the assessee.
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2024 (1) TMI 1269 - ITAT DELHI
Addition u/s 68 - unexplained cash deposit - assessee company had deposited cash during demonetization period in bank account(s) out of cash in hand - CIT(A) deleted addition as examined the cash balance, ITR , audit report filed before the demonetization and held that there were no scope for manipulation as the audit report has been filed much before - HELD THAT:- CIT(A) logically came to a conclusion that the cash deposited post demonetization is duly explained by the available cash balance as on 08.11 .2016, which was in turn built up by cash withdrawals from bank accounts , which are undisputed, and the opening cash balance a t the beginning of the year , which is also undisputed since the same tallies with the cash balance as on 31.03 .2016 as per the ITR for A .Y. 2016-17 filed on 12.10 .2016 i.e . prior to demonetization. Hence, we decline to inter fere with the order of the ld. CIT(A). Appeal of the Revenue is dismissed.
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2024 (1) TMI 1268 - SUPREME COURT
Doctrine of merger and doctrine of binding precedent - Civil suit for declaration of title, possession and permanent injunction against the respondents - 8 cents of land and the construction standing thereon - HELD THAT:- The doctrine of merger is a common law doctrine that is rooted in the idea of maintenance of the decorum of hierarchy of courts and tribunals. The doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter.
In the current case, as previously mentioned, the High Court's judgment from the initial round dated 30.03.1990, noted that the disputed property included 8 cents of land, not just the building structure on it. As per the Doctrine of Merger, the judgments of the Trial Court and the First Appellate Court from the first round of litigation are absorbed into the High Court's judgment dated 30.03.1990. This 1990 judgment should be regarded as the conclusive and binding order from the initial litigation. Following the principles of judicial discipline, lower or subordinate Courts do not have the authority to contradict the decisions of higher Courts. In the current case, the Trial Court and the High Court, in the second round of litigation, violated this judicial discipline by adopting a position contrary to the High Court's final judgment dated 30.03.1990, from the first round of litigation.
The argument of the Counsel for respondents is mainly that the judgment of the Trial Court and First Appellate Court in the first round of litigation clearly stated in the case of the plaintiff that it was with respect to the constructed portion only in which the mother of the appellant was residing and not the whole area of 8 cents purchased by them. The High Court committed a bona fide error in recording that the suit property was 8 cents along with constructions standing over it. As such the Trial Court and the High Court in the present round were correct in limiting the decree only to the constructions and not the entire area of 8 cents.
A suit for possession with respect to such a property would be liable to be dismissed on the ground of its identifiability. Further, it may be noted that if the construction by the defendant were not made over 8 cents of purchased land, then the plaintiff therein would not have a claim to possession of the same. The argument thus has to be rejected not only on facts but also on legal grounds.
The impugned judgment and order of the High Court is set aside and that of the First Appellate Court dated 13.10.2003 passed by the Sub-Judge, Padmana bhapuram is restored and maintained - Appeal allowed.
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2024 (1) TMI 1267 - DELHI HIGH COURT
Condonation of delay in filing appeal - HELD THAT:- Issue notice. Mr. Prashant Srivastava, Advocate accepts notice on behalf of the respondent. Mr. Srivastava submits that he would have no objection, if a similar direction is issued in the instant matter.
Accordingly, the delay in filing the appeal is condoned - The impugned order dated 07.07.2017 passed by the Tribunal is set aside.
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2024 (1) TMI 1266 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
Condonation of delay in filing the Appeal - ground taken in the Application for condonation is that the Order passed by the Adjudicating Authority was passed without giving an opportunity to the Appellant - Violation of principles of natural justice.
Whether Appellant is entitled for benefit of Section 14 of the Limitation Act for excluding the period during which the two applications were pending before the Adjudicating Authority?
HELD THAT:- Hon’ble Supreme Court in KALPRAJ DHARAMSHI & ANR. VERSUS KOTAK INVESTMENT ADVISORS LTD. & ANR. [2021 (3) TMI 496 - SUPREME COURT] had occasion to consider Section 14 of the Limitation Act in reference to Appeal filed under Section 61 of the Code before the Appellate Tribunal. In the above case, Appeal was filed before the Appellate Tribunal against the Order dated 20th November, 2019 on 18.02.2020 - The Hon’ble Supreme Court considered the submissions, noticed the ambit and scope of the Section 14 of the Limitation Act and after noticing the judgments of the Hon’ble Supreme Court in MP. STEEL CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (4) TMI 849 - SUPREME COURT] and CONSOLIDATED ENGG. ENTERPRISES VERSUS PRINCIPAL SECY. IRRIGATION DEPTT. & ORS. [2008 (4) TMI 668 - SUPREME COURT] held that benefit of Section 14 of the Limitation Act can be extended in Appeal filed under Section 61 of the IBC. Ultimately after elaborate discussion and after noticing the facts of the present case, it was held that Appellant was entitled to exclusion of period during which he was bona fide prosecuting before the High Court with due diligence.
The judgment of Hon’ble Supreme Court thus clearly establishes that benefit of Section 14 of the Limitation Act can be extended in Appeal filed under Section 61 of the IBC. Thus the applicability of Section 14 of the Limitation Act with regard to Appeal under Section 61 is no more res integra.
Hon’ble Supreme Court in Kalpraj Dharamshi has also held that even if Section 14 is not strictly applicable, the principles under Section 14 are attracted. Section 14 of the Limitation Act is applicable in IBC proceeding which is now settled by several judgments of the Hon’ble Supreme Court as well as by virtue of Section 238A of the Code which clarifies about the applicability of limitation act.
Thus, even Section 14 is not attracted the benefit of Section 5 of the limitation act can be extended and the cause can be considered for condonation of delay by applying Section 5 but in the IBC there is a cap on the jurisdiction in condoning the delay as per Section 61(2) proviso, jurisdiction to condone the delay is only of 15 days. Period during which application was pending before the Adjudicating Authority is not excluded under Section 14 of the Limitation Act, the delay in filing the Appeal is beyond 15 days which is not within condonable limit. Thus, delay is beyond 15 days and cannot be condoned.
This Appeal has been filed challenging the Order beyond 45 days. The jurisdiction to condone the delay being limited to 15 days and having held that benefit of Section 14 of the Limitation Act cannot be extended to exclude period during which I.A. No. 2337 of 2023 and I.A. No. 3270 of 2023 remained pending before the Adjudicating Authority, the Delay Condonation Applications which prays condonation of 74 days delay deserves to be dismissed.
Application dismissed.
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2024 (1) TMI 1265 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Application seeking direction to release payment as an Operational Creditor, for the services rendered during the CIRP period, dismissed - right to appeal in terms of Section 61(3) of the Code - HELD THAT:- The application filed under Section 60(5) was filed by the Appellant on 01.06.2019. At that time the proceedings in regard to approval of the Resolution Plan was not over. The Appellant did not file any application for staying the approval of the Resolution Plan till the disposal of his application. The Resolution Plan was approved on 27.06.2019 itself and the same has ultimately been approved by the Hon'ble Supreme Court on 28.02.2020. It is also a matter of fact that the Plan has also been implemented. In such circumstances, the application filed under Section 60(5) had lost its sheen as a new right of appeal become available to the Appellant to pursue its remedies in terms of Section 61(3)(iii) and (iv) of the Code before the Appellate Authority. The said procedure was not followed by the Appellant and therefore, in our considered opinion, the application filed under Section 60(5) was not maintainable.
In view of the aforesaid discussion and the fact that Resolution plan was approved way back on 28.02.2020 by the Hon’ble Supreme Court and has been implemented, there are no merit found in the present appeal - appeal dismissed.
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2024 (1) TMI 1264 - SC ORDER
Input tax credit - eligibility of benefit of input tax credit claimed after six months from the date of invoice - Section 10(3) of the K-VAT Act - it was held by High Court that The assessees shall be eligible to avail the input tax credit as and when the tax is paid by them, without any limitation of time - HELD THAT:- In the facts and circumstances of the present case and particularly having regard to the nature of the transactions involved, it is not required to interfere in the matter.
SLP dismissed - since this special leave petition is dismissed on merits of this case, in the interest of justice, the delay is also condoned.
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2024 (1) TMI 1263 - CALCUTTA HIGH COURT
Maintainability of petition - requirement of pre-deposit - it is contended that though the impugned order of the appellate authority is further appellable before the Tribunal but the said forum is not available at present - HELD THAT:- List this matter for final hearing in the monthly list of April, 2024.
If petitioner makes deposit of further 20% of the disputed remaining unpaid interest within two weeks from date and files proof of payment of the same before the authority concerned, no recovery proceeding shall be taken against the petitioner. This interim order shall continue till 30th April, 2024 or until further order whichever is earlier.
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2024 (1) TMI 1262 - ITAT DELHI
Unexplained cash deposits during the demonetization period - assessee failed to explain the source thereof satisfactorily during the assessment proceedings - AO dismissed the claim of sales and went on to make addition u/s 69A treating the deposits as income from undisclosed sources and computed the tax as per provisions of section 115BBE - CIT(A) deleted the addition - HELD THAT:- The undisputed fact is that there is not even a whisper of any defect, error or infirmity in the books of account maintained by the assessee which were audited both under the Companies Act and under the Income tax Act. The books of account have been maintained in the regular course of business and cash deposits in the books of account are duly reflected in the books of account
Sales made by the assessee and shown in the regular books of account have been accepted as such by VAT authorities while framing the VAT assessment. The assessee was having sufficient stock in hand for making the impugned sales during the demonetization period and it is not the case of the AO that the assessee has shown bogus purchases to show bogus sales to cover up cash deposited during the demonetization period. No reason to interfere with the factual findings of the ld. CIT(A) - Decided against revenue.
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2024 (1) TMI 1261 - SC ORDER
Retention of certain goods as security - claiming release of goods - it was held by Supreme Court that No case for interference under Article 136 of the Constitution of India is made out - However, it will be always open for the petitioner to raise all permissible objections/contentions before the Arbitral Tribunal in accordance with law - HELD THAT:- The application is completely mis-conceived and the same is accordingly dismissed. The petitioner in the Special Leave Petition has been permitted to raise contentions provided the same are permissible in accordance with law.
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2024 (1) TMI 1260 - ITAT DELHI
Reopening of assessment u/s 147 - reasons to believe - Addition towards cash deposits in saving bank account and unexplained investment in purchase of land - CIT(A) upheld the addition made by the AO towards unexplained investment in property and granted partial relief on account of cash deposit made in the saving bank account
HELD THAT:- AO had formed a reasonable belief that income of the assessee had escaped assessment primarily on two facts as assessee‟s case is non-PAN case but the assessee is having PAN and is regularly assessed to income tax. Assessee had used the very same PAN for filing his original return u/s 139.
Also the income tax return for AY 2009-10 is not available on record but this is factually incorrect as assessee had already filed his income tax return on 22.09.2010
Based on the aforesaid two factual incorrect assumptions made by the ld AO while recording the reasons, the AO had come to conclusion that cash depositnmade in the saving bank account would constitute income escaping assessment in the hands of the assessee, warranting reopening u/s 147 of the Act.
Once, it is clearly established that the very basis of assumption of jurisdiction by the ld AO for reopening the assessment was based on incorrect facts, the entire foundation of reason to believe of the ld AO goes. Once, the foundation goes, the entire reopening deserves to be quashed.
This view of ours is further fortified by the decision of the coordinate bench of Mumbai Tribunal in the case of ITO Vs. M/s. Champaklal Mathurbai Mehta [2022 (11) TMI 1209 - ITAT MUMBAI] wherein by placing reliance on the decision of Deepak Wadhwa [2021 (3) TMI 332 - DELHI HIGH COURT]. and decision of Mumtaz Haji Mohamad Menon [2018 (10) TMI 366 - GUJARAT HIGH COURT] had quashed the reopening proceedings.
Respectfully following the same, we have no hesitation to quash the reassessment by holding that assumption of jurisdiction u/s 147 of the Act in the instant case is based on incorrect facts recorded thereon. - Decided in favour of assessee.
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2024 (1) TMI 1259 - ITAT SURAT
Revision u/s 263 - unexplained expenditure u/s 69C - lack of enquiry on the part of AO - AO’s order termed as erroneous as well as prejudicial to the interest of the revenue - assessee has made credit cards payment but assessee has not shown any income from business and profession, as evident from the ITR filed by the assessee for the year under consideration - HELD THAT:- We note that during the assessment stage, the AO asked the assessee to furnish the details and documents which are placed in paper book. In response, the assessee submitted its reply which is placed at paper book, as stated above. Thus, all the documents, details and the explanations required by the AO were submitted by the assessee.
Just because the AO does not bring these documents and details in his assessment order does not mean that assessing officer has not conducted proper enquiry during the assessment stage. In fact, AO has applied his mind.
Assessee is right in his submission that one has to keep in mind the distinction between “lack of inquiry” and “inadequate inquiry”. If there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter. If an Income-Tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. Therefore, in the assessee`s case, it cannot be said that it is a case of ‘lack of inquiry’.
Thus we note that the AO enquired during assessment proceedings and the assessee had filed details before him. So we find that the AO’s action cannot be termed “erroneous”. Since not only enquiry was carried out by the AO on the issue under consideration and based on the evidence gathered he has taken a plausible view, which at any rate cannot be called as an unsustainable view.
Hon’ble Supreme Court in the case of Malabar Industries [2000 (2) TMI 10 - SUPREME COURT] held that this phrase i.e. “prejudicial to the interest of the revenue’’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue.
When AO adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the AO 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”. Therefore, we are of the considered opinion that AO’s order cannot be termed as erroneous as well as prejudicial to the interest of the revenue - Decided in favour of assessee.
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2024 (1) TMI 1258 - BOMBAY HIGH COURT
Seeking refund of money alongwith interest and damages - Plaintiff was falsely induced, on account of the Defendant’s misrepresentation to execute a Film Rights Assignment Agreement and to part with the said amount - HELD THAT:- There are no difficulty in accepting the submission of the learned senior counsel Mr.Godbole, that when ‘action’ is electronically received in the registry, it shall be considered as the date of e-filing and it is sufficient substance in his submission, since it is quite possible, that on an ‘action’ being generated, there may be objections which will have to be notified on a subsequent date, as in case of physical filing of any proceedings, the date of its filing, is the date when it is tendered in the Registry of the Court. The objections may be notified at a subsequent point of time and time shall be given to cure the objections, but the filing date do not get postponed till the removal of office objections and for all purposes it shall be the date on which the proceedings are for the first time tendered in the Registry.
The parties shall, suffer irreparably an ‘action’ being uploaded through e-filing, but if the Registry do not take note of the objections as in the present case, it is seen that the scrutiny of the Written Statement/Interim Application occurred only on 24.03.2023, much later than the date of uploading of the document and it is not possible to label this document merely as a mere ‘Draft’ awaiting clearance of office objections.
There are no merit in the submission of respondent that merely because Written Statement/Interim Application was filed OnLine and an email is generated, unless and until it is perfected in all aspects by removing office objections, it shall not be construed to have been filed.
Application is allowed by condoning delay of 85 days in filing the Written Statement.
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2024 (1) TMI 1257 - SC ORDER
Rejection of Resolution plan - no related party - Non-inclusion of the Appellant in the Committee of Creditors - entitlement to vote in the Committee of Creditors - categorization of the homebuyers in class as ‘Affected’ and ‘Unaffected’ homebuyers - violation of Section 30(2)(e) of IBC - it was held by NCLAT that no error has been committed by the Adjudicating Authority in rejecting the application - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.
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