9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (11) TMI 462 - AT - Income TaxMaintainability of Revision application u/s 264 of the Income Tax Act - Petition filed by the assessee under section 264 on 2-8-2000 - Bar imposed by section 264(4), as an appeal filed by the assessee before Commissioner (Appeals) on 31-7-2000 was pending - The appeal pending before the Commissioner (Appeals) was dismissed because of non-compliance with section 249(4)(a). The assessee filed before the Commissioner another petition under section 264 on 28/2/2002 - The assessee, later, complied with section 249(4)(a) and filed a fresh appeal before the Commissioner (Appeals) on 9-2-2004 with a request for condonation of delay, but the Commissioner (Appeals) refused to condone the delay and dismissed the appeal on 31-9-2004 Held that - Petition u/s.264 is infructuous exercise which has admitted by the CIT u/s. 264 of the IT Act. The assessee had also not waived the right of appeal Reliance is place upon the judgment in the case of ITO vs. Ankush Finstock Ltd 2012 (5) TMI 164 - ITAT AHMEDABAD - In view of the above facts, legal position as well as sequence of events and having paid the entire taxes as per return of income, the application dated 31/5/2011 filed before CIT(A) requesting for the condonation of delay or the revival of the appeal in view of the judgment of the ITAT, Mumbai in case of Bhumiraj Construction 2010 (4) TMI 754 - ITAT MUMBAI , is required to be considered and accordingly, the CIT(A) is directed to verify whether the entire admitted tax has been paid or not and if so, he shall consider the case on merit in accordance with law, on the various grounds raised by the appellant Company Appeal of assessee allowed for statistical purpose.
Issues Involved:
1. Dismissal of appeal by CIT(A) on technical grounds. 2. Validity of the order under Section 264 of the Income Tax Act. 3. Treatment of NTCs/societies as benami of the appellant company. 4. Addition of Rs. 6,87,000/- for income receivable from 'Elegance'. 5. Disallowance of consultancy expenses of Rs. 1,40,000/-. 6. Disallowance of legal and professional fees of Rs. 5,26,415/-. 7. Disallowance of entertainment expenditure of Rs. 58,035/-. 8. Disallowance of compensation expenses of Rs. 4,43,423/-. 9. Disallowance of hire charges of Rs. 58,176/-. 10. Disallowance of car expenses and depreciation totaling Rs. 1,55,323/-. Detailed Analysis: 1. Dismissal of Appeal by CIT(A) on Technical Grounds: The CIT(A) dismissed the appeal as infructuous because the appellant had not paid the self-assessment tax due under Section 140A. The Tribunal referenced the case of Bhumiraj Constructions vs. Addl. CIT, where it was held that the requirement to pay tax before filing an appeal is directory and not mandatory. Once the defect of non-payment is rectified, the appeal should be considered valid from the date it was originally filed. The Tribunal directed the CIT(A) to verify if the entire admitted tax had been paid and to consider the appeal on its merits if so. 2. Validity of the Order under Section 264: The appellant argued that the order under Section 264 should be considered invalid as the original appeal was a valid appeal. The Tribunal noted that the CIT-III, Ahmedabad, had revised the assessment order under Section 264, but this was done without the appellant waiving its right to appeal. The Tribunal cited the case of Mayfair Builders and Developers, where it was held that a revision petition under Section 264 is infructuous if an appeal is pending before the CIT(A). 3. Treatment of NTCs/Societies as Benami of the Appellant Company: The AO treated the NTCs/societies as benami of the appellant company and assessed their income at Rs. Nil subject to adjustment under Section 154. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. 4. Addition of Rs. 6,87,000/- for Income Receivable from 'Elegance': The AO added Rs. 6,87,000/- to the appellant's income, estimating profit at 15% of the construction cost for the 'Elegance' project. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. 5. Disallowance of Consultancy Expenses of Rs. 1,40,000/-: The AO disallowed consultancy expenses of Rs. 1,40,000/- paid to Aum Corporation. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. 6. Disallowance of Legal and Professional Fees of Rs. 5,26,415/-: The AO disallowed legal and professional fees of Rs. 5,26,415/-. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. 7. Disallowance of Entertainment Expenditure of Rs. 58,035/-: The AO disallowed entertainment expenditure of Rs. 58,035/-. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. 8. Disallowance of Compensation Expenses of Rs. 4,43,423/-: The AO disallowed compensation expenses of Rs. 4,43,423/-. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. 9. Disallowance of Hire Charges of Rs. 58,176/-: The AO disallowed hire charges of Rs. 58,176/- without allowing depreciation on the machinery. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. 10. Disallowance of Car Expenses and Depreciation Totaling Rs. 1,55,323/-: The AO disallowed car expenses of Rs. 82,922/- and depreciation on vehicles of Rs. 72,401/-. The Tribunal restored this ground to the CIT(A) for fresh adjudication on merits. Conclusion: The Tribunal allowed the appeal for statistical purposes, directing the CIT(A) to verify the payment of the entire admitted tax and to adjudicate the grounds on merits. The Tribunal emphasized the need for substantial justice over technicalities, referencing various legal precedents to support its decision.
|
