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Income Tax - Case Laws
Showing 21 to 40 of 163830 Records
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2024 (5) TMI 397 - SC ORDER
Validity of reassessment proceedings in name of a non-existing company - notice issued after scheme of amalgamation as approved by the High Court - as decided by HC [2023 (3) TMI 1483 - BOMBAY HIGH COURT] stand of the Revenue that the reassessment proceedings could be initiated for a period prior to the specified date as per the scheme of amalgamation even against a non-existent entity, is an argument which is clearly untenable - HELD THAT:- We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed.
Pending applications, if any, shall stand disposed of.
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2024 (5) TMI 396 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - validity of order passed by the first respondent overruling the objection of the petitioner against the reopening of the assessment that was completed earlier on 28.12.2018 - HELD THAT:- Although the petitioner has not produced any documents to substantiate that the petitioner had enclosed the copy of the order of the Special Tahsildar, Stamps prior to passing of the assessment order u/s 143(3) the fact remains that the reasons furnished by the respondents indicate that the differential value for an amount of Rs. 22,11,500/- was omitted to be considered indicating that the information was available either in the Form of order of the Special Tahsildar dated 02.04.2018 or in the Form of an endorsement in the sale deed, which would have been produced for inspection before the re-assessment was completed on 28.12.2018. The words used in the two communications dated 08.11.2011 and on 02.08.2021 by the jurisdictional AO make it clear that the information was available. However, it was not noticed by the AO.
The petitioner has made out a case for interfering with the impugned order - Accordingly, the impugned order passed by the first respondent overruling the objection of the petitioner against the re-opening of the assessment that was completed earlier on 28.12.2018 vide impugned notice issued u/s 148 is set aside.
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2024 (5) TMI 395 - KARNATAKA HIGH COURT
Set-off of losses against income from other sources u/s 70 - Applicability of provision of section 10B - petitioner had the status of EOU for a period of 5 years - as submitted even though Section 70 would be applicable, when an assessee files a declaration, then Section 10B could not be invoked automatically - HELD THAT:- Admittedly, petitioner is 100% EOU had the permission till up to 20.03.2013. Petitioner has also made an application for renewal of its status 02 months before expiry of enquiry for the relevant assessment years, namely, 2008-09, 2009-10 petitioner was having the 100% EOU status and whereby the declaration filed by the petitioner with Income Tax Office, Circle-1, Raichur, claiming that the provisions of Section 10B are not applicable to the petitioner – Company was within the scope of the petitioner – Company inasmuch as even though Section 70 of the Act was made applicable to the petitioner, it was the choice of the petitioner to seek for non-application of Section 10B by filing a declaration.
Said position of law is not in dispute in view of the judgment of the Division Bench of this Court in ‘Karle International (P) Ltd. [2020 (9) TMI 968 - KARNATAKA HIGH COURT] as held it is equally well settled legal proposition that where the assessee does not want the benefit of deduction from the taxable income, the same cannot be thirst upon it. There is no provision which makes compulsory on the part of income tax officer to make deduction in all cases. As the assessee has not filed any audit report in Form-56G which is a mandatory requirement for claiming deduction under Section 10B of the Act. Therefore, the deduction u/s 10B of the Act cannot be thirst upon the assessee.
Thus the petitioner has chosen to file declaration for the relevant assessment years before the jurisdictional Income Tax Officer seeking that the Section 10B would not be applicable to the assessee. WP allowed.
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2024 (5) TMI 394 - ITAT MUMBAI
LTCG - deduction u/s 54 - entire amount of long-term capital gains earned from the sale of original assets was not invested - CIT(A) granted partial relief to the assessee by observing that the assessee has made only partial investment in the new house property and therefore is entitled to relief u/s 54 of the Act only limited to the payment made for the new flat as per the purchase deed - HELD THAT:- There is no material available on record to show that the assessee was put to notice or was granted the opportunity of hearing by the learned CIT(A) before arriving at the aforesaid conclusion. Accordingly, we deem it appropriate to restore this issue to the file of the jurisdictional AO for de novo adjudication after consideration of the details as may be furnished by the assessee. The assessee is directed to file her submission along with all the necessary supporting documents in respect of her claim u/s 54 of the Act before the AO.
Accordingly, the impugned order passed by the learned CIT(A) is set aside and the grounds raised by the assessee are allowed for statistical purposes.
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2024 (5) TMI 393 - ITAT PUNE
Exemption u/s 80P(2)(a)(i) or u/s 80P(2)(d) - interest income earned from Nationalised banks/cooperative banks - HELD THAT:- We find this issue is no more res integra by virtue of several decisions of the Tribunal as well as the decision of Sai Prerana Gramin Bigarsheti Sahakari Pat Sanstha Maryadit [2019 (7) TMI 1582 - ITAT PUNE] allowing deduction u/s. 80P.
As relying on M/S. RATNATRAY GRAMIN BIGAR SHETI SAH. PAT SANSTHA MARYADIT [2018 (12) TMI 1926 - ITAT PUNE] as following TUMKUR MERCHANTS SOUHARDA CREDIT COOPERATIVE LIMITED case [2015 (2) TMI 995 - KARNATAKA HIGH COURT] the interest income earned on fixed deposits with cooperative bank/scheduled bank partakes character of the business income, which is eligible for deduction u/s 80P(2)(a)(i) of the Act. Therefore, we direct the Assessing Officer to allow the exemption u/s. 80P(2)(a)(i) and section 80P(2)(d) of the Act. Thus, the grounds of appeal filed by the assessee stand allowed.
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2024 (5) TMI 392 - ITAT MUMBAI
Addition u/s 68 - unexplained gifts received from family members - proof to justify the sources of gifts rendered - Onus to prove - CIT(A) deleted addition on the basis that the AO has made huge additions but has not made any reference with regard to identity, creditworthiness, and genuineness of the gift givers - Also AO has not made any effort to rebut the submissions made by the assessee and has made additions without giving any reasons for the same - HELD THAT:- Gift received from assessee's real brother - From the perusal of the gift deed entered we find that the donor is the younger brother of the assessee and out of natural love and affection gave Rs. 97,35,000 as a gift to the assessee. From the perusal of the ITR acknowledgement of assessee's brother, he has earned a total income of Rs. 37,48,84,100 during the year under consideration. Therefore, we are of the considered view that Mr. Sunil B. Dalal had sufficient creditworthiness to gift to the assessee. AO has also not disputed the creditworthiness of Mr. Sunil B. Dalal. Further, in view of the fact that the donor/gift giver is the younger brother of the assessee, the genuineness of the transaction cannot also be doubted.
Gift received from assessee's mother - Nothing has been brought on record to doubt the genuineness of the transaction of grant of gift by a mother to her son. The fact that the assessee’s mother had a total income of Rs. 1,21,100, as per her return of income for the assessment year 2020-21, also supports the claim of the assessee that the gift of Rs. 1,50,000 was out of her past savings along with the current year income. Therefore, we find no basis for doubting either the genuineness of the transaction or the creditworthiness of the donor.
Gift received from assessee's real sister - From the perusal of the copy of the ITR acknowledgement and statement of income for the assessment year 2020-21, assessee sister had an interest income of Rs. 8,45,318, which resulted in a total income of Rs. 7,74,920 as per her return of income. Thus, creditworthiness of sister cannot be doubted to give a gift of Rs. 1,50,000 to the assessee. Further, in the absence of any contrary material being brought on record by the Revenue, the genuineness of the gift of Rs. 1,50,000 to the assessee by his sister cannot also be doubted.
Gift received from HUF - karta of the HUF is Assessee's father - we find that B.M. Dalal HUF had cash in hand of Rs. 10,28,953. From the capital account of B.M. Dalal HUF, we find that the HUF earned commission and brokerage of Rs. 1,26,830 and long-term capital gains of Rs. 1,40,000 during the year under consideration. Therefore, in view of the aforesaid, we are of the considered opinion that the creditworthiness of B.M. Dalal HUF has been sufficiently proved. Further, in the absence of any contrary material being brought on record by the Revenue, the genuineness of the gift to the assessee by his father’s HUF cannot also be doubted.
Thus AO has not brought any material on record to controvert the submissions made by the assessee. Therefore, CIT(A) rightly deleted the addition made by the AO. Decided in favour of assessee.
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2024 (5) TMI 391 - ITAT DELHI
Rectification u/s 154 - The Assessee filed a rectification application, which was dismissed by the CIT(A) based on the assumption of Tribunal's adjudication on the issue. - Whether the issue of unexplained cash addition was not at all entered into by the coordinate Bench while deciding the appeal? - HELD THAT:- As observed above, while reproducing the order of coordinate Bench in the misc. application, it comes up that the specific observation was made at the time of disposal of misc. application that the Bench has not disputed the findings of learned CIT(A) on this issue. This observation is categorical finding with regard to the fact that findings of learned CIT(A) qua the unexplained cash additionin para 5.5 remains untouched.
This finding being not challenged by the Revenue and being not adverse to the assessee, was certainly not required to be determined in the appeal of the assessee. Merely because there was a ground mentioning composite figure of Rs. 2,37,08,076/-, it cannot be said that the coordinate Bench had adjudicated upon the issue of unexplained cash also.
Thus, order of learned CIT(A) in dismissing the application u/s 154 of the Act is not justified. Accordingly, the appeal is allowed and the issue on merit is restored to the file of learned CIT(A) to decide the application of the assessee afresh in the light of aforesaid observations of this Bench. Appeal of the assessee is allowed for statistical purposes.
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2024 (5) TMI 390 - ITAT AHMEDABAD
Rectification application filed u/s 154 - Mismatch in the amount of depreciation - Assessee ha been allowed lesser depreciation for which it was entitled - HELD THAT:- The assessee before the revenue authority and before us contended that deprecation in books of account is of ₹ 6,23,97,846/- only which was added back while computing business income as per the Act. This amount can be verified from audited financial statement of the assessee available on record, where the profit and loss account and fixed asset schedule is available. We have also perused the ITR of the assessee filed in form ITR-6 and note that in Profit and loss account reported in ITR-6 in schedule “Part A- P&L the assessee shown depreciation amount at ₹ 6,65,43,786/-only. Hence, there is mismatch in the amount of depreciation as per books reported at 2 different places which not been verified by the authority. Therefore, in our considered view that there is mismatch in the amount of depreciation which needs to be looked into and same needs to be rectified after verification.
Additional depreciation - We find that the assessee before the revenue authority and before us stated that in the immediate previous assessment year, it acquired plant & Machinery which was eligible for additional depreciation. However, the plant & machinery in previous assessment year was put to use for less than 180 days therefore the assessee claimed only 50% of such additional claim in the immediate previous year and remaining 50% claimed in the year under consideration. The claim made in previous assessment year for 50% amount has been allowed therefore remaining 50% should also be allowed in the year under consideration. The lower authority without verifying the veracity of assessee’s claim rejected the rectification application 154 of the Act. In our considered opinion, the claim of the assessee needs to be verified as it appears to us there is a mistake in the order of the information generated under section 143(1) of the Act and needs to be rectified under the provisions of section 154 of the Act.
Additional claim made by the assessee for the gratuity on payment basis - can the assessee make fresh claim in application filed under section 154? - We find support and guidance from the judgement of Promod R Aggarwal [2023 (10) TMI 1142 - BOMBAY HIGH COURT] - the claim made by the assessee in the application filed under section 154 of the Act is required to be looked into by the AO on merit as per the provisions of law. Hence, the grounds of appeal of the assessee are allowed for the statistical purposes.
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2024 (5) TMI 389 - ITAT DELHI
Nature of receipt - Taxability u/s 17(3)(iii) - compensation received under Non-Competition Agreement on termination of job (employment) - payment under the profits in lieu of salary or capital receipt - Payment by erstwhile employer of the assessee on termination of service - DR submitted that after cessation of employment, assessee entered into an agreement “Deed full and complete release and agreement of trade secrets and confidentiality” and received the sum - Assessee claimed that amount as not taxable as it was a capital receipt given to him as ex-gratia by Coca Cola India Inc. on executing a non-disclosure and release agreement ‘after’ cessation of his services.
HELD THAT:- As per ratio of judgment in Guffic Chem Private Limited [2011 (3) TMI 6 - SUPREME COURT] it is well settled that compensation attributable to a negative/restrictive covenant is capital receipt. According to judgment of Mrs. Tara Sinha [2017 (8) TMI 731 - DELHI HIGH COURT] a non compete fee under Non-Competition Agreement is not chargeable to income tax.
In view of above said material fact especially assessee employee having received sum as per “Deed of full and complete release and agreement on trade secrets and confidentiality” containing non compete clause as per above said well settled principles of law being capital receipt is not taxable - Assesse appeal allowed.
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2024 (5) TMI 388 - ITAT AHMEDABAD
Rejection of the application for final approval u/s. 80G on technical grounds - applicant was required to file application in Form No. 10AB on or before 30.09.2022, which it failed to submit - CIT(E) was of the view that the date of commencement of activities in the case of the assessee should also be six months prior to the date of filing of From 10AB - HELD THAT:- As decided in the case of CIT-1982 Charitable Trust [2024 (3) TMI 1201 - ITAT CHENNAI] while passing the order the Tribunal held that the Timeline prescribed under clause (iii) of first proviso to section 80G(5) should be treated as directory and not mandatory, hence, once timeline prescribed for filing Form No.10A for recognition under section 12A had been extended up to 30.09.2023, same may be treated as extended for forms namely Form No.10AB for renewal of approval/recognition/registration under clause (iii) of first proviso to section 80G also.
In the case of Anudip Foundation for Social Welfare[2024 (3) TMI 1202 - ITAT KOLKATA] Tribunal has held that where assessee had been granted provisional approval under clause (iv) to first to section 80G(5), application nor final approval under clause (iii) to first proviso to section 80G(5) could not be rejected on ground that institution had already commenced its activities even prior to grant of provisional registration.
Since in the instant facts, as it evident from the various dates mentioned above, the assessee / Applicant Trust had filed application for grant of final approval u/s 80G(5) of the Act within a period of six months from date of grant of provisional registration on 06.04.2023 (whereas date of grant of provisional approval u/s 80G(5) of the Act was 30.03.2023 and as noted by us in the preceding paragraph, the assessee could have filed application for grant of approval on or before 30.09.2023) i.e. within a period of six months from date of grant of provisional registration which stands further extended to 30.06.2024 vide Circular No. 7/2024 dated 25.04.2024.
Accordingly, we are of the considered view that Ld. CIT(E) erred in summarily dismissing the application of grant for final approval u/s 80G(5)(iii) of the Act for reasons cited. Accordingly matter is restored to the file of Ld. CIT(E) for de-novo consideration.
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2024 (5) TMI 387 - ITAT DELHI
Taxability of income in India - Validated by a Tax Residency Certificate (TRC) - Proof of residence - assessee’s claim of benefit under Article 13(4) of the India-Mauritius DTAA - Long Term Capital Gain arising from sale of shares of certain Indian companies - assessee is a non-resident corporate entity incorporated under laws of Mauritius - AO concluded that the assessee was controlled and managed from outside and does not have any commercial substance or real economic activity in Mauritius - Whether assessee being a shell/conduit company is not entitled to avail benefits under India-Mauritius DTAA?
HELD THAT:- Since, the capital gain is derived from shares acquired prior to 01.04.2017, they are not taxable in terms with Article 13(4) India Mauritius Tax Treaty. In our view, the AO has failed to establish on record that the assessee is a shell/conduit company through proper evidence. Therefore, in our view, assessee remains entitled to treaty benefits.
DRP has referred to the LOB clause under Article-27A of the India Mauritius Tax Treaty. In our view, the reference to Article 27A is totally irrelevant as the assessee has not claimed any benefit under Article 13(3B) of India Mauritius Tax Treaty. Even assuming for the sake of argument that Article 27A gets attracted, however, the Department has failed to demonstrate the fulfilment of conditions of shell/conduit company as per Article 27A of the tax treaty. We may further observe, the directions issued by learned Dispute Resolution Panel leaves a lot to be desired.
Thus we are of the view that the assessee, being entitled to claim exemption under Article 13(4) of India- Mauritius Treaty, the addition made is unsustainable. Accordingly, the Assessing Officer is directed to delete it.
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2024 (5) TMI 386 - ITAT MUMBAI
Validity of unsigned order - Final assessment order not signed by the AO - DR submitted that the additions made in the draft assessment order and the final assessment order are the same and as the draft assessment order has been duly signed by the AO and the additions made therein have been confirmed by DRP no prejudice is caused to the assessee if the final assessment order is not signed by the AO - HELD THAT:- The Board has issued instructions from time-to-time laying down the procedures for signing of the notices and the assessment orders. Sub-section (2) of section 282A of the Act explains the connotation of expression "authentication". Thus, signing of document and authentication of document carry different meaning.
Signing of document denotes committing to the document, whereas, authentication of document relates to genuineness of origin of document. If signing and authentication would mean the same, then there was no need for the Legislature to lay down the requirement of signing the documents, viz., notices, orders, etc., in sub-section (1) and explain the purpose of authentication in sub-section (2) of section 282A of the Act. If argument of the Revenue is accepted, then the provisions of sub-section (1) of section 282A would become redundant.
Revenue has tried to take shelter under section 292B of the Act. The said section cures the procedural defects or omissions. The section does not grant immunity from non-compliance of statutory provisions. Non-signing of an assessment order is not a procedural flaw that can be cured subsequently. The order is complete only when it is signed and released. The date on which the order is signed by the AO is the date of order. If the Revenue's contention is accepted and the AO is allowed to sign the assessment order now considering it to be procedural deficiency, still the order would suffer from the defect of limitation and would be without jurisdiction.
In the case of Vijay Corporation [2012 (4) TMI 353 - ITAT MUMBAI] co-ordinate Bench in a case where the assessment order served on the assessee was not signed by the AO held that requirement of signature of the Assessing Officer is a legal requirement. The omission to sign the order of assessment cannot be cured by relying on the provisions of section 292B of the Act and held the order invalid.
Ergo, in facts of the case and documents on record, we hold the unsigned impugned assessment order served on the assessee invalid and quash the same. Decided in favour of assessee.
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2024 (5) TMI 385 - ITAT JODHPUR
Validity of reopening of assessment - no approval was taken U/s 151 - HELD THAT:- On perusal of the recorded reason, it reveals that the ld. AO has not taken any approval u/s 151 of the Act from higher authorities.
Whether the mistake is curable U/s 292B? - The reply is against the revenue.Issuance of notice without approval has been rendered illegal due to breach of mandatory condition of the sanction on satisfaction of higher authority under proviso to Section 151of the Act. Considering this, we set aside the impugned appeal order. See M/S DHADDA EXPORTS VERSUS INCOME TAX OFFICER, WARD 1 (1) , JAIPUR [2015 (4) TMI 304 - RAJASTHAN HIGH COURT] - Assessee appeal allowed.
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2024 (5) TMI 354 - SC ORDER
Prayer for stay against demand - second round of petition - order of demand has been stayed subject to depositing 10% of the demand - In the second round of writ petition, petitioner now submits that the authorities have again committed patent illegality and perversity and acted with arbitrariness in deciding the petitioner’s application.
As decided by HC [2024 (2) TMI 1376 - RAJASTHAN HIGH COURT] the authority having jurisdiction, has passed a brief order, keeping in view that it is only deciding the stay application and not the merits of the case. The argument of petitioner that various figures and details which were given by him have not received consideration, does not merit acceptance - We find that the authority has not restricted the relief of 20% but has granted stay subject to deposit of only 10% of the demand. The demand is based on order of assessment. The matter is in appeal. It is a tax matter and a party cannot, as a right, claim that merely because he files an appeal, the demand should be stayed.
HELD THAT:- We are not inclined to interfere with the impugned judgment, and hence, the special leave petition is dismissed.
We, however, clarify that we have not commented on whether or not a reference should have been made to the High-Pitched Scrutiny Assessment Committee.
Pending application(s), if any, shall stand disposed of.
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2024 (5) TMI 353 - ALLAHABAD HIGH COURT
Addition u/s 68 - Tribunal had disbelieved the explanation furnished by the assessee as to genuineness of the gifts received by him from six individuals - HELD THAT:- Tribunal had delved deep into the matter and discovered that there was no pre-existing relationship or circumstances disclosed as may have given rise to any gift to the assessee.
Appellant is a well to do person whereas the donors were persons of modest means. In absence of any relationship shown or basis disclosed for generation of the gift, the Tribunal has disbelieved the explanation furnished by the assessee on the preponderance of probability emerging from evidence led by the parties.
Insofar as assessment of the income tax is purely a civil proceeding, the test of preponderance of probability applied by the Tribunal cannot be faulted. In the context of gift set up by the assessee, merely because the assessee may have been able to establish such gift was received through bank channel and merely because the donors may not have disputed the gift made may never have been enough to establish genuineness of the transaction.
Slight difference of test may continue to exist in cases involving gift, and deposits that are to be repaid by the recipient. Insofar as gift claimed by the petitioner amounted to change of title in the money, we do not find any defect in the course adopted by the Tribunal in disbelieving the claim on the basis of holistic consideration of the material before the Tribunal. Its findings are pure findings of fact. They do not give rise to any substantial question of law.
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2024 (5) TMI 352 - BOMBAY HIGH COURT
Validity of Reassessment proceedings - reason to believe escapement of income - notice issued within four years from the end of the relevant assessment year - what tangible material which AO has done in the reasons to believe? - reason to believe under two heads, i.e., expenses towards designing fees which was capitalized and a sum that assessee paid towards concession fee to Punjab Urban Development Authority (PUDA) - HELD THAT:- The reasons made available itself shows that it was a clear case of change of opinion. On the first item, i.e., expenses towards designing fees, which was capitalized, the A.O. states “the said contention was accepted and expenses was allowed by the department”. In Paragraph No. 2.3 it is stated “such expenses was not to be allowed as revenue expense and should have been capitalized and required to be disallowed and added back”. Therefore, it is a clear case of change of opinion.
For amount paid towards concession fee to PUDA it is stated that it is arising out of the contractual obligation between assessee company and PUDA, the same had been claimed as deduction while computing income. The said deduction was accepted and deduction was allowed to assessee - In Paragraph No. 3.1 it is stated that “ such expense was also required to be capitalized as work in progress in the books of accounts of assessee and should have been disallowed.” Therefore, this is also a clear case of change of opinion.
Moreover, during the course of assessment proceedings petitioner had also received a notice under Section 142(1) of the Act calling upon to furnish various materials under different heads including details of designing fees expense with copy of ledger and party wise details as also details regarding concession paid to PUDA. By its letter petitioner provided all the details. Therefore, these two items were also subject of consideration during the assessment proceedings.
Since the reasons to believe itself indicate as noted above that the reopening is based purely on change of opinion, as held in Aroni Commercials Limited [2014 (2) TMI 659 - BOMBAY HIGH COURT] this change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. Decided in favour of assessee.
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2024 (5) TMI 351 - DELHI HIGH COURT
Faceless Assessment - Validity of assessment order passed u/s 143(3) r.w.s. 144B - non affording a reasonable opportunity to be heard through video conferencing - Denial of natural justice - HELD THAT:- A plain reading of Section 144B (6)(viii) of the Act indicates that where a request for personal hearing is received, the Income Tax Authority of the relevant unit shall allow a hearing through National Faceless Assessment Centre, which shall be effected exclusively through a video conferencing or video telephone. Since the request for video conferencing was made by the petitioner, it is mandatory for the respondent to accede to the same in terms of Section 144B (6)(viii) of the Act. It is well recognized that an opportunity to be heard is an important facet of natural justice. Thus, before passing an adverse order, a reasonable opportunity of hearing is required to be afforded to the petitioner.
Undisputedly, in the present case, the Act expressly provided for the concerned Unit to afford the assessee an opportunity of hearing. In this view, we find merit in Mr. Kapoor’s contention that the impugned assessment order falls foul of the principles of natural justice and the statutory requirement of affording the assessee an opportunity of being heard.
Accordingly, we set aside the impugned assessment order and remand the matter to the concerned Assessing Officer to consider afresh after affording a reasonable opportunity to be heard through video conferencing as is required in terms of Section 144B (6)(viii) of the Act.
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2024 (5) TMI 350 - PUNJAB AND HARYANA HIGH COURT
Validity of order passed u/s 147 r.w.s.144B - availability of alternate statutory remedy - conditions for exercise of jurisdiction by HC - writ petition contending that the provisions of section 69C read with section 115BBE of the Act could not be invoked and the show-cause notice did not refer to these provisions - petitioner submits that the AO has failed to give sufficient time to the petitioner while issuing notice u/s 69C - HELD THAT:- Considering that factual aspects are involved, this Court would refrain from entering into a fishing enquiry while examining a case under writ jurisdiction. We also notice that the judgment cited by the learned counsel of Full Bench of the Hon'ble Supreme Court of India in Calcutta Discount Co. Ltd. [1960 (11) TMI 8 - SUPREME COURT] is with regard to the issue where the concerned Income Tax Officer acted without jurisdiction and in these circumstances Supreme Court held that the writ Court may entertain a plea challenging such assessments done without jurisdiction.
The Hon'ble Supreme Court in case of The State of Maharashtra and others versus Greatship (India) Limited [2022 (9) TMI 896 - SUPREME COURT] as held High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under the statute.
Similarly, in case of The State of Madhya Pradesh and another versus M/s Commercial Engineers and Body Building Company Limited [2022 (10) TMI 576 - SUPREME COURT] the issue was regarding maintainability of writ petition in relation to tax matters where statutory remedy of appeal is available and it was held that the impugned judgment and order passed by the High Court entertaining the writ petition under Article 226 of the Constitution of India against the Assessment Order denying the benefit of Input rebate is unsustainable and the same deserves to be quashed and set aside.
This Court refrains from entertaining the present writ petition. Consequently, the present petition is hereby dismissed.
It is made clear that the period for filing of appeal has expired, however, in the circumstances, the appellate authority is directed to hear the appeal on merit if it is filed within a period of 15 days subject to making pre-deposits if required in law.
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2024 (5) TMI 349 - ITAT AMRITSAR
Validity of reassessment proceedings - non-issue of the statutory notice u/s 143(2) - HELD THAT:- We find that the assessee has repeatedly applied for inspection of case records, for obtaining certified copies of order sheets, and for obtaining copies of notice u/s 143(2), if the same at all exists in the files of the assessing officer, and has even paid the requisite fees by way of challan, but the same has not been allowed by the AO. DR, could not confirm whether the statutory notice u/s 143(2) has been issued or not in absence of assessment records in his custody.
DR also expressed his inability to produce the same and he has also not brought anything on record contrary to the arguments advanced by the Ld. AR.
Thus we hold that the AO has not issued the statutory notice u/s 143(2) in response to return filed u/s 148 of the Act 1961. It is not a case that notice u/s 143(2) has been issued, and not served upon the assessee, but it is a case where the notice u/s 143(2) has never been issued at all, for assumption of jurisdiction, and the non-issue of the statutory notice u/s 143(2) is an incurable defect which cannot be cured, because the basic foundation of the assessment proceedings is bad in law. Decided in favour of assessee.
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2024 (5) TMI 348 - ITAT DELHI
Deduction u/s 80IAB on the disallowance of depreciation on Water-use Rights (Intangibles Asset) - As per revenue payment cannot be considered to be on account of acquisition of capital asset as right to use water neither diminishes nor enhances by any means. The Government has just given a facility to the assessee to use the same and the assessee has clearly tried to claim the depreciation on the same, this cannot be allowed - HELD THAT:- As decided in assessee own case we agree with the contention of the Id, counsel that such an enhancement of profit by way of disallowance of depreciation would be eligible for deduction u/s. 80IAB and this position is now set at rest by CBDT Circular No. 37/2016 dated November 2, 2016, wherein the CBDT has accepted that if disallowance leading to enhancement in the profits of eligible business, then deduction under Chapter-VIA of the Act is admissible on the profits so enhanced by the disallowance.
Accordingly, we direct the Assessing Officer to allow the deduction u/s. 80IAB on the disallowance of depreciation and gave consequential relief. In view of our aforesaid direction, the issue raised on merits on allowability of depreciation on intangible assets is purely academic - Appeal of the assessee is allowed.
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