Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Synergy Waste Management Pvt. Ltd. Versus ACIT, Hisar

Revision u/s 263 - Eligibility for deduction u/s 80IA - Held that:- The Ld. AR has drawn our attention to various pages in the paper book which support the assessee’s claims that the A.O., during the assessment proceedings u/s 143(3) of the Act, had made extensive enquiries about the assessee’s claim of deduction u/s 80IA. A copy of the reply furnished by the assessee to the A.O in this regard is found to be placed in pages 46 to 51 of the Paper Book. A perusal of the assessment order also shows .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n a consideration to the claim of the assessee also as is evident from the disallowance made by him on account of other income. However, he has not launched a lengthy discussion on the issue of deduction but that does not lead to an inference that there has been a lack of enquiry on his part on the issue. It is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an AO, acting in accordance with law, makes a certain assessment, the same cannot be branded .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

shed. - Decided in favour of assessee. - ITA No. 2560/Del/2014 - Dated:- 30-5-2016 - Shri G. D. Agrawal, Vice President And Shri Sudhanshu Srivastava, Judicial Member For the Appellant : Shri Ved Jain, Adv. Shri Ashish Kumar, Adv. For the Respondent : Shri Pankaj Vidharthi, CIT DR ORDER Per Sudhanshu Srivastava, Judicial Member This appeal has been preferred by the assessee against order dated 29/3/2014 by the Ld. Commissioner of Income tax, Hisar u/s 263 of the Income-tax Act, 1961 for Assessme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

waste treatment, which fell under solid waste management system. In the original assessment order u/s 143(3) dated 26/12/2011, the claim u/s 80IA was reduced from ₹ 1,72,76,560/- to ₹ 1,66,73,315/- and a sum of ₹ 6,03,245/- was disallowed as deduction on the ground that other income was not eligible for deduction u/s 80IA of the Act. 3. The Ld. CIT, Hisar issued a shows cause notice to the assessee u/s 263(1) of the Act on 4/3/2014 to which the assessee responded in detail on 1 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al to the interest of Revenue has been established and so must be quashed. 2. Additionally, the order u/s 263 of the Act proposing a redoing of the assessment merely on the basis of difference in opinion and holding that the Assessing Officer has failed to apply his mind on relevant provision of law is untenable on facts and law and unsustainable as such and must be quashed. 4. The Ld. AR submitted that during the course of assessment proceedings the AO raised the issue of deduction claimed by t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eby the Ld. CIT raised the issue regarding the deduction u/s 80IA of ₹ 1,72,75,560/- claimed by the assessee in respect of treatment of bio-medical waste, and stated that the same required further inquiry. In response to the said notice, the assessee submitted a detailed reply along with various documentary evidences to justify its claim of deduction u/s 80IA of the Act. The said reply is at Pages 57 - 66of the Paper Book. The various details submitted along with the reply are at pages 67 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

order passed by the AO without determination of total income and tax payable is illegal. He submitted that in this regard, the following facts cannot be ignored: (i) Copy of Audit Report submitted by the assessee in Form 10CCB (enclosed at PB 29 - 35). (ii) A proper reply regarding the justification of claiming the deduction u/s 80IA has been given by the assessee to the AO, which is enclosed at PB 48 - 50. (iii) The AO in his order dated 26.12.2011 has specifically mentioned the deduction clai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itted that in view of the above facts, it is clearly evident that the order passed by the AO was in no way prejudicial to the interest of the revenue as the tax payable had been calculated in a separate Annexure. It was submitted that merely because the AO has not elaborately discussed the claim of assessee, the same cannot be a ground for invoking the provisions of section 263. The Ld. AR submitted that despite considering the reply of the assessee on other issues and even after appreciating th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lleged that the AO has not made proper enquiries however it is on record that the details of deduction claimed by the assessee along with the relevant justification of the said claim was submitted by the assessee before the AO. Further, the Audit Report in Form 10CCB was also submitted before the AO and it was only after verifying the claim of the assessee and considering the submissions of the assessee that the AO had restricted the claim of the deduction to ₹ 1,66,73,315/-. He submitted .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s was submitted by the assessee before the AO as well as before the Ld. CIT. It was submitted that the assessee also referred to the publication of World Bank Institute to justify that Bio-Medical waste is included in solid waste management. The said publication is at Pages 69 - 80 of the paer Book. The Ld. AR further submitted that the Ld. CIT has alleged that the assessee is paying rent for the plant and machinery which indicates that the facility is not owned by the assessee. This finding rec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Delhi for the space provided for setting up of CBWTF at Delhi. The copies of invoices along with copy of cheques for the same were also submitted by the assessee before the AO and Ld. CIT. Though the rent was paid for the space, but the CBWTFs were owned by the assessee itself. The Ld. AR further submitted that the assessee had also submitted the following evidences before the AO as well the Ld. CIT, which will further ensure that the assessee is eligible to claim the deduction u/s 80IA(4) of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Disposal of the Bio Medical Waste from Haryana State Pollution Control Board • Agreement with General Hospital & Trauma Center • Agreement with Director Health Services for the period of ten years • An agreement with UP Health System Development Project for having or setting CTF at or around Lucknow 8. The Ld. AR submitted that the Ld. CIT has completely disregarded the justification as well as the documentary evidences submitted by the assessee and has held that the biomedica .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the judgment of Hon ble ITAT Mumbai in the case of ITO v. E. A. Infrastructure Operations P. Ltd. [2011]. The Ld. AR further submitted that were two views are possible and Assessing Officer follows one of the possible view, the CIT cannot sit over the judgment of the AO. This was held by the Apex Court in the case of CIT vs Max India Ltd. [2007] 295 ITR 282 (SC). Similar view has been taken by Jurisdictional High Court in the case of CIT Vs Kelvinator India Ltd. [2011] 332 ITR 231 (Del). The Ld .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by the assessee through a revised return and not in the original return which casts a doubt on the bona fides of the claim. He also emphasized that the deduction u/s 80IA of the Act was allowable only on disposal of waste and not on collection of waste which the assessee company was engaged in. He submitted that the Ld. CIT (A) had rightly set aside the assessment order and that the impugned order should be upheld. 10. We have heard the rival submissions and perused the relevant records. The Ld. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s 80IA after reducing it by ₹ 6,03,245/- on account of other income not being eligible for the claim of deduction. Therefore, it will be wrong to infer that there has been no application of mind by the A.O while considering the claim of the assessee although he might not have expressed it in terms of a lengthy discussion on the issue. The Hon ble Delhi High Court in CIT vs. Sunbeam Auto Ltd 332 ITR 167 (Del) has opined in Para 17 of its order as under:- 17. We have considered the rival sub .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cates on the assessment order, which apparently does not give any reasons while allowing the entire expenditure as revenue expenditure. However, that by itself would not be indicative of the fact that the Assessing Officer had not applied his mind on the issue. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

inquiry that such a course of action would be open. In Gabriel India Ltd. [1993] 203 ITR 108 (Bom), law on this aspect was discussed in the following manner (page 113): "... From a rending of sub-section (1) of section 263, it is clear that the power of suo motu revision can be exercised by the Commissioner only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicia .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the wellaccepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cording to him, the order should have been written more elaborately. This section does not visualize a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualized where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be formed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion . . . There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. . . We may now examine the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

not be held to be erroneous simply because in his order he did not make an elaborate discussion in that regard. 11. Similarly, the Hon ble Delhi High Court in ITO vs. DG Housing Projects Ltd. 343 ITR 329 (Del) opined as under: 16. Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under Section 263 is passed. In such cases, the orde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the As .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t be kept in mind by the CIT while exercising jurisdiction under Section 263 of the Act and in the absence of the finding that the order is erroneous and prejudicial to the interest of Revenue, exercise of jurisdiction under the said section is not sustainable. In most cases of alleged "inadequate investigation", it will be difficult to hold that the order of the Assessing Officer, who had conducted enquiries and had acted as an investigator, is erroneous, without CIT conducting verifi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

erroneous. Therefore CIT must after recording reasons hold that the order is erroneous. The jurisdictional precondition stipulated is that the CIT must come to the conclusion that the order is erroneous and is unsustainable in law. We may notice that the material which the CIT can rely includes not only the record as it stands at the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT [see CIT vs. Shree Manju .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sing Officer. Every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest of Revenue. Thus, when the Assessing Officer had adopted one of the courses permissible and available to him, and this has resulted in loss to Revenue; or two views were possible and the Assessing Officer has taken one view with which the CIT may not agree; the said orders cannot be treated as an erroneous order prejudicial to the interest of Revenue unless t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t are not satisfied. The Assessing Officer did conduct investigation and accepted the claim under Section 80HHF on being satisfied that the conditions stipulated in the said Section are satisfied. It is not the case of "no investigation". It is also not a case where per-se further investigation was required. Commissioner in his order, as noticed above, has been tentative and hesitant and did not decide whether the claim under Section 80 HHF has been rightly allowed by the Assessing Off .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y the Assessing Officer, Commissioner cannot set aside the order without recording contrary finding. This will be contrary to Section 263 of the Act. In paragraph 6 of the order dated 29th March, 2007, the Commissioner uses the expressions 'erroneous and prejudicial to the interest of Revenue' but did not cite any reason or ground for the said conclusion. Use of the words without elucidation indicates, that the said observation are presumptive or a suspicion and mere repetition of words .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eference was made to the decision of a Full Bench of Delhi High Court in CIT vs. Kelvinator of India (2012) 256 ITR 1 (Del.). In the said case, order of remand to the Commissioner of Income Tax for fresh decision was passed after noticing that the Tribunal had considered the question of bifurcation of interest income with reference to the deduction under Section 80IA. It was recorded that this bifurcation and the nature of income was accepted by the Tribunal though the Commissioner of Income Tax .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oned in the case of DG Housing Projects Ltd. (supra). 20. In view of the aforesaid discussion, question No. 2 has to be answered against the Revenue and in favour of the respondent assessee and it has to be held that the Assessing Officer during the course of original assessment proceedings, had delved deep into the question of deduction under Section 80HHF and was satisfied that the deduction made were as per law. Question No. 1 is also answered in favour of the respondent assessee and against .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Article: SERVICES UNDER REVERSE CHARGE UNDER GST REGIME

Forum: Duty Drawback & Input Credit - under GST

Forum: Excise duty credit on finished stock at additional place of business.

Forum: Credit on Repair of Company Car & Its Insurance

Highlight: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017 - Notification

Highlight: Companies (Acceptance of Deposits) Second Amendment Rules, 2017 - Notification

Highlight: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg. - Circular

Highlight: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20 - Public Notice

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Circular: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20

Notification: Companies (Acceptance of Deposits) Second Amendment Rules, 2017

Notification: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017

Forum: Trans1 return

News: Exchange Rate of Foreign Currency Relating To Imported and Export Goods Notified

Circular: Promote the officers of the Indian Revenue Service (Customs and Central Excise) to the grade of Principal commissioner of customs, GST & CX

Circular: Allocate the charges amongst the Members of the Central Board of Excise and Customs

Circular: Strategy for audits in 2017-18 consequent to GST - Audit by Central Excise and service Department to continue for the accounting year 2016-17 and for the past period

Circular: Appoint the IRS (C&CE) officers as Principal Commissioner (Revision Application) and ex-officio Additional Secretary

Circular: Time limit for filing intimation for composition levy under Rule 3(1) of the CGST Rules, 2017 extended to 16-8-2017

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017

Circular: C.B.E. & C. Advisory on Customs related matters on introduction of Goods and Services Tax regime

Circular: List of Reduced Tax Liabilities under GST regime in comparison to present combined Indirect Tax rates

Circular: Works Contract for construction of Flats, Complex — Builders to pass on GST benefit to buyer otherwise anti-profiteering provisions of Section 171 of GST Act to apply

Circular: Clarification regarding applicability of section 16 of the IGST Act, 2017, relating to zero rated supply for the purpose of Compensation Cess on exports – Regarding.

Circular: Clarification on Inter-state movement of various modes of conveyance, carrying goods or passengers or for repairs and maintenance- regarding

News: RBI Reference Rate for US $

Highlight: Addition u/s 23(1)(a) - deemed rent - once the property is let out and at any point of time this remained vacant during the same cannot be brought to tax under the head House properties income.

News: Haryana constitutes screening committee on anti-profiteering

Highlight: Valuation of imported goods - it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously, to see if the enhanced royalty was in the guise of adjustment of the price of components.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

Highlight: Cenvat credit availed on Club Membership for the Director is not admissible as it cannot be said to be remotely connected with the activity of manufacture

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

News: Jaitley asks biz not to wait till last day to file GST returns

Circular: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg.

Article: 20 Things You must know about E Way Bills in GST Law

Article: ‘DUTY DRAWBACK’ CANNOT BE EQUATED WITH ‘REBATE OF DUTY’

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version