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Showing 41 to 60 of 1506 Records
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2016 (1) TMI 1466 - SC ORDER
Maintainability of special leave petition - HELD THAT:- The special lave petition need not be entertained - the special leave petition is dismissed.
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2016 (1) TMI 1465 - ITAT DELHI
Defective appeal - HELD THAT:- Bench noticed that the Revenue has filed the present Appeal against the impugend order by rasing the Grounds of Appeal dated 12.11.2013 which was unsigned, which is contrary to the Rules. Therefore, the present Appeal is “Defective” and is not maintainable in the eyes of law, hence, the same is dismissed as such. But in the interest of justice, if so advised, the Revenue is at liberty to file the Application to recall this order, after rectifying the defect.
Since we have already dismissed the Revenue’s Appeal being “Defective”, as aforesaid, the Cross Objection filed by the Assessee has become infructuous and dismissed as such. Even otherwise, we note that the Cross Objection is barred by limitation and there is a delay of 579 days in filing the Cross Objection which was communicated to the Assessee.
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2016 (1) TMI 1464 - ITAT HYDERABAD
Reopening of assessment u/s 147 - assessee had PE in India - HELD THAT:- AO had completed the original assessment u/s 143(3) of the Act after considering all the materials submitted by the assessee. Later, the AO reopened the assessment u/s 147 relying on the same materials submitted by the assessee. There was no fresh material or any information which gives the impression that the income of the assessee has escaped assessment. The initiation of reassessment proceedings u/s 147 on the basis of the same material on record and holding there was escapement of income as the income arose from transfer of the asset is to be assessed as ‘business income’ is on change of opinion. It was held in the case of Phool Chand Bajranglal [1993 (7) TMI 1 - SUPREME COURT] where the AO comes into possession of fresh information or new facts, which lead him to form a reasonable belief that income has escaped assessment, he can reopen the assessment. In the present case, AO had not found any fresh information nor new facts.
Also held in the case of Tractbel Industry Engg. Vs. Asst. DIT [2011 (1) TMI 1470 - DELHI HIGH COURT], during the course of original assessment proceedings, the assessee was called upon to give information and details regarding the nature of business activities in India, it was stated in the letter that the assessee does not have any PE in India. AO in original assessment accepted the contention of assessee.
Reassessment on the ground that the assessee had PE in India on the same facts was held to be not justified and liable to be quashed. In the present case also, the AO had accepted the contention of assessee i.e. treating the income as ‘capital gains’ and the source of income was reassessed and intended to treat the income as business income. It clearly establishes that the AO has changed his opinion, therefore, the reopening of assessment deserves to be quashed.
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2016 (1) TMI 1463 - GUJARAT HIGH COURT
Question of law or fact - reopening of assessment beyond a period of four years - HELD THAT:- Tribunal recorded that the AO only on the base of information supplied by the investigation wind at Mumbai that the assessee had received share application money from one of the tainted companies, issued notice
Tribunal was of the opinion that the AO himself did not satisfy about the requirement and issued notice under section 148 of the Act without forming a reason to believe that the income of the assessee had escaped assessment. Tribunal regardlessly proceeded to examine the issue on merits and deleted the addition towards share application money.
Upon perusal of the judgement of the Tribunal with the assistance of learned counsel for the Revenue, we are of the opinion that the issues raised are fundamentally questions of facts. The Tribunal having perused the facts on record come to the factual findings. No question of law arises. Under the circumstances quite apart from the validity of reopening, in our opinion, judgement does not require any further consideration. Appeal dismissed.
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2016 (1) TMI 1462 - MADRAS HIGH COURT
Maintainability of appeal - monetary limit - HELD THAT:- In view of the said submissions made by the learned counsels appearing for the Appellant/Revenue, the present tax case appeals stand dismissed, as withdrawn. It is made clear that the questions of law, which may arise for the decision of this Court, in the present tax case appeals, are left open to be considered and decided in appropriate cases, in accordance with law.
It is also made clear that it would be open to the Appellant/Revenue to revive the tax case appeals, if it is found that the same had been withdrawn, inadvertently, even though the same falls under the exceptions mentioned in paragraph 8 of the Circular, within a period of twelve weeks from today.
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2016 (1) TMI 1461 - ITAT DELHI
Reopening of assessment u/s 147 - Characterization of income - treating the sale of additional quota of sugar in free market as revenue receipt against the assessee’s claim of capital receipt - HELD THAT:- The Hon’ble Supreme Court in CIT vs. Ponni Sugar and Chemicals Ltd. and Ors. [2008 (9) TMI 14 - SUPREME COURT] has held that the subsidy for setting up sugar mills, to be utilized for repayment of term loans undertaken for setting up new units/expansion of existing business, is a capital receipt and not chargeable to tax.
Adverting to the facts of the instant case, we find that the assessee is covered under the Incentive scheme dated 10.3.1993 as it was set up in 7.3.1994. It is so borne out from the letter dated 10.7.2000 issued to the assessee by the Government of India, Ministry of Food, Directorate of Sugar, a copy of which is placed at page 175 of the paper book, giving licence and covering it under the Incentive scheme dated 10.3.1993. Pursuant to the requirement of submission of Utilization certificate from a Chartered Accountant, the assessee submitted such certificate, a copy of which is available at pages 38 and 39 of the paper book. Such certificate indicates repayment of interest on loan to the financial institutions to the tune of ₹ 2.65 crore against which the amount of subsidy is only a sum of ₹ 35.11 lac. This exhibits that the object of subsidy given to the assessee is setting up of sugar mill and the mode of discharge of subsidy is free sale of additional quota, which is meant to be utilized for the repayment of term loans taken from the financial institutions etc.
In the instant case, the assessee has simply realized excess price in terms of Incentive scheme dated 10.3.1992 and there is no excess realization over and above the sanctioned realizable amount. Thus, it is manifest that the facts of the instant case are strictly governed by the judgment in the case of Ponni Sugar rather than KCP Ltd. We, therefore, overturn the impugned order on this issue.
Disallowance of reserve fund for construction of Molasses Storage Tank which was credited to Reserve account after debiting the same to the Profit & Loss Account - HELD THAT:- The undisputed facts are that the assessee created Molasses reserve fund for construction of molasses storage tank by crediting a sum to this account in accordance with UP Sheera Niyantran Niyamavali. The Hon’ble Calcutta High Court in CIT vs. Upper Ganges Sugar Mills Ltd [1993 (2) TMI 22 - CALCUTTA HIGH COURT] has held that contribution towards Molasses Storage Fund is eligible for deduction as business expenditure. Similar view has been taken by the Hon’ble Madras High Court in certain decisions including CIT vs. Salem Cooperative Sugar Mills Ltd[1996 (9) TMI 40 - MADRAS HIGH COURT] - In view of several decisions taken note of by the ld. CIT(A) in the impugned order supporting the assessee’s contention, which have not been controverted by the ld. DR with any contrary decision, we are of the considered opinion that the ld. first appellate authority has taken an unimpeachable view on this issue. We, therefore, uphold the impugned order on this score.
Disallowance of pre-operative expenses which were capitalized by the assessee - HELD THAT:- On a specific query, the ld. DR could not point out any direct addition made by the AO on account of the third reason and submitted that the disallowance was in support of such third reason. We are unable to find any rationale in making any disallowance for an expenditure which was admittedly capitalized by the assessee and no deduction was claimed by way of a debit to its Profit & Loss Account - AO himself has categorically noted in the assessment order that the pre-operative expenses were capitalized. Once the assessee has not claimed any deduction for a particular amount and capitalized the same, there can be no reason for making any disallowance of the such amount. In our considered opinion, the ld. CIT(A) was justified in deleting this addition.
Excise duty (sugar), Cess duty (sugar) and Purchase tax unpaid - HELD THAT:- . AR has pointed out that the assessee had itself made disallowance of these three amounts in the computation of income, which was the reason for the AO in not making such addition.
Thus all the four reasons taken note of by the AO before issuing notice u/s 148 are non-existent and, resultantly, there is no question of making any other addition. We, therefore, set aside the assessment order passed by the AO u/s 147 read with section 143(3) of the Act. As such, there is no need to discuss other additions made by the AO which have been upheld or deleted in the first appeal. As the AO is not competent to make any other addition in the instant case, all the additions so made are liable to be deleted. - Decided in favour of assessee.
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2016 (1) TMI 1460 - SUPREME COURT
Issuance of direction for transfer of the investigation to the CBI - murder of the wife of the Appellant - HELD THAT:- A three-Judge Bench in PROF. K.V. RAJENDRAN VERSUS SUPERINTENDENT OF POLICE, CBCID SOUTH ZONE, CHENNAI & ORS. [2013 (8) TMI 1055 - SUPREME COURT] reiterating the said principle stated that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instill confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies.
The factual scenario in the present case has to be appreciated on the touchstone of the aforesaid authorities. As the facts would reveal there was a request by the Additional Chief Secretary for handing over the investigation to the CBI; that departmental action was taken against the investigating authorities for negligent investigation; that the concerned ASI has been reverted to the post of Head Constable; and that apart, certain material witnesses have not been examined by the investigating agency without any rhyme or reason. The reasoning of the High Court is as the trial has commenced, there cannot be a transfer of the case to another investigating agency.
The power to order fresh, de-novo or re-investigation being vested with the Constitutional Courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination - it is directed that the CBI shall conduct the investigation and file the report before the learned trial judge. The said investigation report shall be considered by the trial judge as per law.
Appeal allowed.
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2016 (1) TMI 1459 - GUJARAT HIGH COURT
Dishonor of two Cheque - whether the accused have issued the cheques in question as partners of partnership firm? - HELD THAT:- From the impugned complaint, it is clear that the complainant himself has stated in the complaint that both the accused are partners of J. Parikh and Sons-partnership firm. In paragraph 2 of the complaint, the complainant has further submitted that accused are carrying on business in the name of J. Parikh and sons and accused nos. 1 and 2 are partners of J. Parikh and Sons. The cheques in question were issued by the accused as partners of the partnership firm. From the cheque numbers mentioned in the complaint and from the account statement of M/s. J. Parikh and Sons-partnership firm produced at Annexure ‘B’ with the compilation, it can be seen that both the cheques were issued from the account of the partnership firm. The respondent no. 2-original complainant is served in the present proceedings, however, he has not remained present and controverted the submissions canvassed on behalf of learned advocate for the applicant.
When the respondent no. 2-original complainant has not joined the partnership firm as an accused in the impugned complaint, this Court can exercise the powers under Section 482 of the Cr.P.C for quashing and setting aside the impugned complaint - Application allowed.
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2016 (1) TMI 1458 - MADRAS HIGH COURT
Deduction u/s 35D - Amortisation of certain preliminary expenses - Appellant claimed amortization of GDR expenses as per Section 35D of the Act only to the extent of 2.5% of capital expenditure-project cost against the actual GDR expenses - HELD THAT:- Section 35D enables amortization of specified preliminary expenses, which are otherwise not admissible deductions. Expenditure on issue of shares for public subscription is one such expenditure. Section 35D of the Act applies in two circumstances; (i) pre-business expenses, i.e. expenses incurred before the commencement of business and (ii) expenses incurred in connection with the extension of industrial undertaking or in connection with setting up a new industrial unit by an establishment which is already in business.
The assessee had claimed deduction in respect of successive units over a period of time; one unit during 1995-96, another unit during 1996-97 and yet another unit during 1997-98. There is also a finding that there is no proof to show that Euro Issue had been used for the capital expansion over a period of so many years. On these findings, the assessing officer has chosen to grant deduction only in respect of one unit, namely, for the unit established in 1995-96 to the extent of ₹ 10,39,812/- and disallowed the deduction in respect of other units. Therefore, we find no reason to differ the findings of the Tribunal.
Deduction of bad debts disallowed u/s 36 - contention of the learned counsel for the assessee is that as part of the debt had to be written off, the same should have been allowed as revenue expenditure, and that the Assessing Officer has chosen to treat the same as capital loss, which is not correct in law - HELD THAT:- The claim for deduction on account of bad debt did not satisfy the eligibility creteria as enunciated in the decision reported in Sarangpur v. CIT [1982 (6) TMI 23 - GUJARAT HIGH COURT]. Applying the correct legal position, the Assessing Officer has given a finding that the alleged debt was not part of assessee's stock in trade and that as it has not been incurred while purchasing or selling the goods, in which the company was dealing with, and therefore, the expenditure involved cannot be treated as a debt and therefore, it is not an admissible deduction. Therefore, there is no reason to interefere with the findings of the Tribunal.
Deduction disallowed as claimed u/s 37(4) - assessee claimed deduction in respect of expenditure on maintenance of guest house, rent paid on guest house and depreciation on assets in the guest house building - AO disallowed the deduction - HELD THAT:- This finding was confirmed by the Income Tax Appellate Tribunal, relying upon the decision of the Supreme Court reported in Britania Industries Ltd. vs. CIT [2005 (10) TMI 30 - SUPREME COURT], in which, it was held that depreciation rent repairs under Sections 30 and 32 of the Act and maintenance expenses are not allowable in respect of guest house.
Deduction disallowed as claimed under Section 80HHC - HELD THAT:- Tribunal felt that, a) with regard to interest income, insurance claim and other income, there is no discussion about the nature of this income; b) whether these are operational income arising out of manufacturing activity on account of which the assessee is doing business or not; and c) with regard to other head of claim also, there is no discussion.
This omission by Assessing Officer as well as Commissioner of Income Tax (Appeals) has been specifically pointed out by the Tribunal and the Tribunal has remitted the issue back to the file of the Assessing Officer, with a direction to find out the nature of the income, and if the income is found to be operational income, then, 90% is to be excluded while computing deduction under Clause (baa) to Explanation to Section 80HHC and this 90% will be excluded out of the gross receipts while computing the export profit for the purpose of deduction under this provision. Therefore, the order of the Tribunal in remanding this issue for consideration on issues pointed out does not suffer from any infirmity and therefore, there is no ground to interfere with the same.
Assessee appeal dismissed.
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2016 (1) TMI 1457 - SC ORDER
Bogus transactions - obligation to consider the revised return tribunal part deletion - legal provisions and particularly, Section 139(4) and Section 139(5) of the I.T. Act - Revenue is seeking re-appreciation and re-appraisal of the factual material on record - HELD THAT:- Delay condoned. Leave granted.
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2016 (1) TMI 1456 - ITAT DELHI
Disallowance of prior period expenses - entire claim of prior period expenses is in respect of liability crystallized during the year and claim is in conformity with past history of the case - HELD THAT:- The assessee is a government undertaking. The assessee has been following mercantile system of accounting, as per which all items of income and expenditure are treated as accrued, only after the approval is granted by the competent authority. This system has been followed consistently in respect of both income and expenditure items. The system followed has been accepted by the department in the immediate preceding year. Therefore, in our view, it will not be appropriate to disturb the regular system being followed by the assessee. Moreover, the revenue has already accepted the same basis adopted regarding the accrual of income and, therefore, different standards cannot be followed in respect of expenditure incurred in relation to the same income as it would give a distorted picture of the profit of the year. The ld.CIT(A) has also allowed the claim in part in his order.
As AR has submitted that the issue may be sent back to the ld.AO for verification to an extent of ₹ 67,99,614/-. DR does not object to this preposition, d by the ld.AR. Accordingly we set aside this ground to the ld.AO for verification and to allow the same following the principle of consistency. This ground raised by the assessee therefore stands statistically allowed.
Addition being in the nature of contingent claim without proper appreciation of facts or legal principles - HELD THAT:- As the amount has not been crystallized the same cannot be treated as income in the hands of the assessee. The assessee being a Government undertaking has been following a system of accounting as per which all items of income and expenditure are treated as accrued only after the approval is granted by competent authority. This system has been followed consistently in respect of both income and expenditure items which has not been disputed by the Revenue in any of the preceding years. Therefore, we are of the considered opinion that the addition confirmed by the CIT(A) is without any basis and needs to be deleted.
Income had accrued or received during the year under reference - addition as accrued interest income on dues from Iraq - HELD THAT:- As perused assessee has only realeased a total amount of ₹ 166.62 crores at an interest of ₹ 6% p.a. We are, therefore, inclined to delete the addition confirmed by the ld. CIT(A) to an extent of ₹ 71.26 crores as interest on the basis of the above discussions.
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2016 (1) TMI 1455 - ITAT MUMBAI
Deduction u/s 80P in respect of interest received from the schedule bank - HELD THAT:- As decided on QUEPEM URBAN CO-OPERATIVE CREDIT SOCIETY LTD. [2015 (6) TMI 573 - BOMBAY HIGH COURT] such lending activities do not constitute banking activities as the same are transacted between the cooperative society and the members of the society. Since, no public is involved the definition of “banking‟ does not cover such activities. As such, there is no Reserve Bank of India‟s approval for conducting such banking activities in this case - From the above, Ld Counsel for the assessee demonstrated that the members of the Credit Cooperative Society do not constitute “public” and there is no depositing, withdrawal by cheque or draft etc. - Decided against revenue.
Taxing “Commission income‟ under the head “income from other sources" - assessee demonstrated that there is no objection if the said amount is taxed as per the provisions of clause (c) to section 80P(2) - HELD THAT:- We remand this issue to the file of the AO for deciding the issue as per the said provisions of clause (c) of section 80P(2) of the Act, which covers the issue under consideration. We order accordingly. AO is directed to give deduction of ₹ 50,000/- as per the provisions of section 80P(2)(c)(ii) of the Act and allow a reasonable opportunity of being heard to the assessee as per the principles of natural justice. Accordingly, the relevant ground raised by the assessee is allowed for statistical purposes.
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2016 (1) TMI 1454 - ITAT AHMEDABAD
Short deduction of TDS - TDS u/s 194J OR 194I - disallowance u/s. 40(a)(ia) relating to VSAT and lease line payments - CIT(A) gave partial relief to the assessee directing the A.O to give proportionate benefit of the TDS already deducted and paid in time and disallowed the balance amount. - HELD THAT:- We find that an identical issue was considered by the Tribunal in assessee’s own case in A.Y. 2008-09 [2015 (9) TMI 1696 - ITAT AHMEDABAD] - findings of the Tribunal can be found at Para 3 of its order. Wherein it has followed the decision of the Hon’ble jurisdictional High Court in the case of Prayas Engineering Ltd. [2014 (11) TMI 1086 - GUJARAT HIGH COURT]and also relied upon the decision of the Hon’ble High Court of Calcutta in the case of S.K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT] - Decided in favour of assessee.
Addition on account of Bad Debts - HELD THAT:- As decided in assessee's own case CIT-A after considering the facts and the submissions and drawing support from the decision of Hon’ble Delhi High Court in the case of Bonanza Portfolio Ltd. [2009 (8) TMI 636 - DELHI HIGH COURT] and also Rameshchandra D. Chokshi i[2010 (8) TMI 1140 - ITAT AHMEDABAD] correctly deleted the additions
Conversion of shares from stock in trade to investment - A.O was of the opinion that the conversion should have been at the fair market value and took the market value of the shares converted from stock in trade to investment and computed the same and added the same to the return of income of the assessee - CIT-A deleted the addition - HELD THAT:- We find that the First Appellate Authority has given a well reasoned and researched order by relying upon the decision of the Hon’ble Supreme Court in the case of Sir Kikabhai Premchand [1953 (10) TMI 5 - SUPREME COURT]. We also find that reliance on the decision of Dhanuka & Sons [1978 (7) TMI 22 - CALCUTTA HIGH COURT] is well founded. Therefore no interference is called for.
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2016 (1) TMI 1453 - ITAT MUMBAI
Admission of additional grounds of appeal - This is second round of proceedings - As per additional grounds of appeal raised assessee was directly issued an assessment order, without the issuance of a draft assessment order as required by the scheme of Section 144C - HELD THAT:- The issue being raised by the assessee is a purely legal issue. In view of the law laid down by Hon’ble Supreme Court in the case of National Thermal Power Corporation Ltd Vs CIT [1996 (12) TMI 7 - SUPREME COURT ] this issue can indeed be even raised for the first time before this Tribunal.
Mere fact that this issue was not taken up in the first round of proceedings does not act to the detriment of the assessee. The issue being raised now is a fundamental legal issue which goes to the root of the matter. If the assessment order itself is a legal nullity, as it is claimed to be, the impugned additions are devoid of any legally sustainable basis.We are, therefore, inclined to admit this claim for adjudication on merits.
Regular assessment order without issuance of draft assessment order - What is material is that the original assessment order was in form and in substance a regular assessment order, and not a draft assessment order. DR has also submitted that since the assessee has participated in the proceedings before the DRP, it cannot be open to the assessee to raise this question now.
It is only elementary that acquiescence does not confer the jurisdiction, and the only issue which can not be raised subsequently, in the light of the specific provisions of Section 292BB, is objections with regard to service, time or manner of service of a notice. That is not the case before us.
In the case of Inventors Industrial Corp [1991 (4) TMI 70 - BOMBAY HIGH COURT] as well, the assessee had duly participated in the reassessment proceedings and yet, in the second round of proceedings, the objections were taken to the validity of reassessment itself. In this view of the matter, and in the light of the above discussions, we uphold the grievance of the assessee and quash the impugned assessment order itself. The issuance of a regular assessment order, without issuance of draft assessment order, was an illegality, but once a regular assessment order was so framed, it was also no longer open to the Assessing Officer to issue a corrigendum or the draft assessment order after issuance of the regular assessment order.
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2016 (1) TMI 1452 - ITAT CHENNAI
Rectification u/s 154 - quash the assessment completed under section 143(3) r.w.s. 147 - HELD THAT:- Against the order of the Tribunal [2011 (9) TMI 1206 - ITAT CHENNAI] the Assessing Officer is yet to pass order afresh. In the meanwhile, the assessee has preferred the present appeal before the Tribunal by challenging the order passed under section 154. With regard to the same issue, the Tribunal has already passed order dated 09.09.2011 [2011 (9) TMI 1206 - ITAT CHENNAI] further adjudication by the Tribunal on the same issue does not arise and accordingly, the appeal filed by the assessee is not maintainable under the law. In view of the above facts, the appeal filed by the assessee is dismissed as not maintainable.
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2016 (1) TMI 1451 - MADRAS HIGH COURT
Maintainability of appeal on low tax effect - Revenue had submitted that they may be permitted to withdraw the present tax case appeal, in view of the Circular No.21 of 2015, as the tax effect relating to the matter is less than ₹ 20,00,000/- - HELD THAT:- Present tax case appeal stands dismissed, as withdrawn. It is made clear that the questions of law, which may arise for the decision of this Court, in the present tax case appeal, are left open to be considered and decided in appropriate cases, in accordance with law. It is also made clear that it would be open to the Appellant/Revenue to revive the tax case appeal, if it is found that it had been withdrawn, inadvertently.
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2016 (1) TMI 1450 - ITAT HYDERABAD
Assessment u/s 153A - addition on account of low household withdrawals - HELD THAT:- As can be seen from the order of AO, and CIT(A), they only disbelieved assessee's version. Since this issue does not arise out of any incriminating material and as assessee has shown the amount as a receipt in 2002-03 itself in the capital account, we are of the opinion that addition cannot be made in the proceedings U/s. 153C, without any evidence to contrary to disbelieve assessee's contentions. We have already held that initiation of proceedings U/s. 153C are itself bad in law, these issues become academic in nature.
Assessee relied on coordinate bench decision in the case of Vinod Kumar Agarwal, another assessee's group case. Therein assessments were made U/s. 153A and parameters for considering the jurisdiction are different. In this case we have already examined the proceedings in the light of jurisdiction high Court judgment. Following the same, the proceedings U/s. 153C initiated in this assessee's case cannot be sustained. Accordingly, assessee's contentions are accepted. The impugned orders are accordingly set aside.
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2016 (1) TMI 1449 - ITAT MUMBAI
Disallowance u/s 14A - Interest expenditure disallowance - MAT computation - HELD THAT:- Whether the interest expenditure constitutes ascertained liability or not is linked to the issue of rejection of books of account as the books of account are the basis for computation of ‘book profits’ under section 115JB of the Act. This issue was set aside to the file of the Ld. CIT(A) for fresh adjudication. Following the aforesaid order of the Co-ordinate Bench of this Tribunal in the case of Hitesh S Mehta [2017 (12) TMI 1668 - ITAT MUMBAI] - Thus we are of the considered opinion that the issue of disallowance of interest expenditure is to be set aside to the file of the Ld. CIT(A), for fresh adjudication.
Charging of interest u/s 234A, 234B and 234C - HELD THAT:- Following the decision of the co-ordinate Bench of the Tribunal in the case of Eminent Holdings Pvt. Ltd. [2014 (7) TMI 466 - ITAT MUMBAI] we restore the issue of computation of interest chargeable u/s. 234A, 234B and 234C of the Act to the file of the Assessing Officer for fresh examination and adjudication after considering the amount of TDS made on income assessed.
Chargeability of interest u/s.234A, 234B and 234C - ‘notified persons’ notified under the Special Court Act - AY 2008-09 - HELD THAT:- Respectfully following the decision of the Hon'ble Bombay High Court in the case of Divine Holdings Pvt. Ltd. [2012 (4) TMI 100 - BOMBAY HIGH COURT] and in accordance with the ratio laid down in the Hon’ble Apex Court’s order in Anjum H. Ghaswala [2001 (10) TMI 4 - Supreme Court] we hold that interest u/s. 234A, 234B and 234C of the Act is mandatorily chargeable in the case on hand eventhough it is a ‘notified person’.
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2016 (1) TMI 1448 - ITAT RAJKOT
Short deduction of tds - TDS u/s 194C or 194J - Payment Customs House Agents - HELD THAT:- In a case like this, where the appellant has deducted tax at source in respect of the payments made to CHAs @ 2% under section 194C, when it is required to be made @10% u/s. 194J the provisions of section 40(a)(ia) cannot be made applicable.
As held by the Hon’ble High Court of Calcutta [2012 (12) TMI 873 - CALCUTTA HIGH COURT] that if there is any shortfall due to any difference of opinion as to the taxability of any item or the nature of payment falling under various TDS provisions, the assessee can be declared to be an assessee in default u/s. 201 of the Act and no disallowance can be made by invoking the provisions of section 40(a)(ia) of the Act. Therefore, the disallowance made by the assessing officer cannot be sustained. Addition on account of disallowance of payments made to CHAs u/s. 40(a)(ia) of the IT Act, 1961 stands deleted. - A short deduction of tax at source, even if any, cannot be visited with the disallowance under section 40(a)(ia) - Decided in favour of assessee.
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2016 (1) TMI 1447 - ITAT CHANDIGARH
TDS u/s 194C - default fur non-deduction of tax on payments made to the Bilaspur District Truck Operators Co-operative Transport Society Ltd [here-in-after referred to as 'Transporter Society'] - Whether CIT(Appeals) was not justified and grossly erred in holding that the 'Transporter Society' is not engaged in the business of plying, hiring or leasing of goods carriages as contemplated in Sec. 194C(6)? - HELD THAT:- As M/s ACC Limit (Chandigarh Sales Unit), Chandigarh 2015 (10) TMI 2785 - ITAT CHANDIGARH CIT(A) has correctly held that clause (a) is applicable to both sections i.e. section 194C and 44 AE, clause (b) is applicable only to section 44AE, since for the benefit of presumptive taxation the assessee should not own more than ten goods carriages. Therefore, the assessee is not required to satisfy the ownership criteria as mentioned in clause (b) of Explanation to section 44AE (7). On a perusal of section 194C (6) read with Explanation (II) to section 194C, it is crystal clear that the transport contractor is not required to be the owner of goods carriage for applicability of section 194C(6) of the Act.
At this stage, we may observe here that an amendment has been made vide Finance Act, 2015 in section 194C (6) wherein it is specifically stated that w.e.f. 1.6.2015, the benefit of non deduction of tax on payment made to transport contractors would be applicable only if the transport contractor owns ten or less goods carriages at any time of the previous year and a declaration to this effect is furnished. In our opinion, the Legislature has intentionally inserted the ownership condition for claiming the benefit of non deduction of tax which was not existing in the erstwhile section 194C(6) of the Act. In view of the above discussion, the assessee (Person responsible) cannot be treated as ‘assessee in default’ for not deducting tax on the payments made to the Bilaspur District Truck Operators Co-operative Society thus, we do not find any infirmity in the order of CIT(A) and accordingly we uphold the same. The appeal of the Revenue is dismissed.
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