|
Advanced Search Options
Income Tax - Case Laws
Showing 281 to 300 of 168845 Records
-
2024 (11) TMI 360
Assessment u/s 153C v/s 143 - Additions u/s 45 - under reporting of sale consideration of immovable property while framing the Assessment Order un/s 143(3) - whether the Assessment Order passed by the AO u/s 143(3) of the Act is illegal and not maintainable in view of the specific provisions of Section 153C?
HELD THAT:- As observed from case records, a search action under Section 132 of the Act was carried out at the premises of Praveen K. Jain Group (searched person) on 06.01.2022. Pursuant to search, document seized from the premises of Praveen K. Jain was received by the AO of the assessee on 03.10.2022. The Assessing Officer has also recorded 'Satisfaction Note' under Section 153C.
In view of express satisfaction note recorded u/s 153C of the Act for different Assessment Years including Assessment Year 2021-22 in question, the proceedings initiated under Section 143(2) of the Act for regular assessment requires to be abated and give way to the special provisions of Section 153C of the Act.
Similar issue came up for adjudication in Akansha Gupta [2024 (7) TMI 1133 - ITAT DELHI] wherein the assessment framed under Section 143(3) of the Act were quashed.
Thus, having regard to the scheme of the Act for assessment of person other than searched person codified under Section 153C of the Act, we find substantial force in the plea of the assessee. Assessment Order passed u/s 143(3) of the Act for A.Y. 2021-22 in question giving rise to the present appeal stands quashed. Decided in favour of assessee.
-
2024 (11) TMI 359
Fraudulent transaction resulting into non-genuine loss - Commission on impugned illiquid option trades - materials available under the ‘project falcon’ available on ITBA portal wherein there was some statement of Shri Arun Shah, Director of one of the share broking firm wherein he has admitted that in such kind of accommodation entries an unaccounted commission amounting to 2% on the buy and sell are received or paid - CIT(A) Reduced the percentage to 0.25% from 2% - HELD THAT:- The entire basis of the ld. AO is based on ‘Project Falcon’ report passed on by the Investigation wing which admittedly pertains to stock option trading carried out on the Bombay Stock Exchange, which has no connection with the assessee as assessee trading was in currency options in United Stock Exchange and it has carried out various opportunities in which assessee had shown profit. All those trades in which assessee disclosed profit has not been disturbed or adversely viewed except for few transactions of losses. For instance in A.Y.2 014-15 there were 11 trades in United Exchange segment, some in futures and some in options, out of which only two trades of currency options have been alleged by the ld. AO. Similarly, in A.Y. 2015-16, the alleged trades in question which were executed in April 2014. The assessee had declared trading profit of Rs. 6,72,64,310/- in A.Y.2014-15 and the alleged non-genuine loss which has been picked up by the ld. AO is only Rs. 7,20,400/-.
AO has just misinterpreted the Report to apply in assessee’s case without independent analyzing the transactions. At least ld. AO should have conducted some enquiry qua these transactions on which assessee had claimed loss instead of blindly relying upon the ‘Project Falcon’ report which has nothing to do with trades in USE. Once the transactions are based on screen based electronic trading and the identities of the buyers and sellers are not displayed, then to presume that the transactions have been manipulated are non-genuine cannot be upheld. Thus, prima facie, there is no material that trade transactions in which assessee had incurred losses (that is, in two transactions) is non-genuine especially when assessee had declared huge profit and income from such trade in similar transactions, which has not been doubted. There has to be basis and inquiry to arrive to any conclusion that out of many transactions, few were manipulated to show fictitious loss and were non-genuine. Accordingly, the additions on account of nongenuine loss and illiquid options are deleted.
Addition of commission u/s. 69C for non-genuine losses - As it is seen that same is based on statement of Shri Arun Shah of M/s. Aryav Securities allegedly recorded in the course of ‘Porject Falcom’. However, nowhere in such statement there is any reference of the trade carried out by the assessee or involvement of the assessee. Further, if such statement was to be relied, then law provides that same should have been confronted with the assessee to rebut or cross examine.
Ultimately, the addition has been sustained by applying adhoc commission rate of 2% which has been scaled down to 0.25% by the ld. CIT (A) that assessee might have incurred such expenditure in cash. There is no evidence brought on record that assessee had actually paid such expenses outside the books and the entire addition is based on conjecture. In any case we have already held that the transactions in which assessee has incurred loss are genuine, therefore, there is no question of imputing any kind of adhoc commission.
Bogus sales/purchase or accommodation entry - It is not a case where the entire purchases have been added, albeit ld. AO has presumed that assessee might have earned commission on such purchases made from non-genuine parties. Accordingly, such adhoc application of commission of 0.25% is deleted.
-
2024 (11) TMI 358
Non deducted the TDS on payments pertaining to the Agency services - CIT(A) found that the TDS was deducted u/s 194C - HELD THAT:- AR submitted that the relevant clause 23 of the Form.No.3CD pertains to “reporting of particulars of payment made to specified persons u/sec40A(2)(b) of the Act” and demonstrated the Form.No.3CD and in particular at Page 23 - clause no 23 along with Annexure D, where the details of payments made to the partner M/s Capricon logistics Pvt Lt is mentioned and TDS was also deducted on the quantum of the Agency services u/sec194C
We find the CIT(A) has dealt on the facts, provisions of Act, submissions of the assessee and the clause 23 of the Tax Audit Report –Form. No 3CD to clear the wrong observations of the AO. Further the said clause relate to reporting of particulars of payments made to specified persons u/sec 40A(2)(b) of the Act and the assessee has reported the payments made to one of the partner M/s Capricon logistics Pvt Lt in the F.Y.2013-14.
CIT(A) has considered these factual information and passed a reasoned order. Accordingly, we do not find any infirmity in the order of the CIT(A) and uphold the same and dismiss the grounds of appeal of the revenue.
-
2024 (11) TMI 357
Nature of receipts - receipts of development fund - capital receipt/corpus donation, or revenue receipt - HELD THAT:- In the present case, the development fund is received from the students apart from the tuition fees. The development fees are received with the clear understanding that it is to be utilized for creation of capital asset necessary for achieving the object of the society. Therefore, the development fees received during the year is directly credited to development fund account and not routed through the Income & Expenditure A/c. The development fund is used in creating construction of school building/creation of infrastructure.
Development fees is utilized in creation of capital asset and therefore the same cannot be treated as revenue receipt. In earlier years also, such development fees is accepted by the AO in assessment completed u/s 143(3) as capital receipt.
Litmus test of charitable institution - In ACIT vs. JSS Mahavidhyapeetha [2013 (4) TMI 761 - ITAT BANGALORE] as stated that the litmus test of charitable institution is the application of funds and not the colour of the contribution. It has stated that the question whether the donations are voluntarily or not becomes irrelevant and what becomes relevant is the application of such contributions on the objects of the trust which are admittedly charitable. If the developer fees is used for the purpose of creating infrastructure then the same would be treated as a capital receipt.
We concur with the findings of the ld. CIT(A) who has rightly held development fund is a capital receipt and would not be added to the gross receipt in the Income & Expenditure Account.
Denial of exemption u/s 11 - advance given to staff and sister concern amounts to the misappropriation of funds - CIT(A) deleted addition - HELD THAT:- CIT(A) held that an amount is amount advanced to supplier/contractor/old staff which cannot be considered as an investment. The remaining amount is advance given to other educational institutions which cannot be considered as investment or deposit and thus the question of their falling within the modes prescribed u/s 11(5) do not arise and consequently provisions of section 13(1)(d) are also not applicable. Accordingly, the addition made by the AO was deleted.
The Bench has take into consideration the submissions of both the parties and also noted the relevant observations as made by the CIT(A) that the AO has not recorded any finding that the sums of money were given interest free out of the borrowed funds on which interest is payable by the appellant. This is not the issue in the present case Regarding the propriety of giving non interest bearing loans to other institutions the fact is that all the institutions to whom the loans are given are also registered u/s 12AA and are within the control of the same management as the appellant and hence it cannot be said that they are part of any tax avoidance mechanism or scheme by transferring tax exempt funds to non- tax exempt entities.
From this observation of the CIT(A) and also the decisions mentioned hereinabove by the assessee, the Bench finds that there is no error in the order of the ld. CIT(A) and thus the Ground No. 4 & 5 of the Department are dismissed.
Rejection of books of accounts u/s 145(3) - adhoc disallowance made by the AO at 20% and partly confirmed at 10% by the ld.CIT(A) - HELD THAT:- We note that the ratio of expenses to the receipt has declined to 85.87% as compared to 87.04% in A.Y. 2011-12 and 88.96% in A.Y. 2010-11. Further the above expenditure includes audit fee, building rent expenses, depreciation, electricity & water expenses, ESI & PF contribution, PF administration charges, salary expenses and supervision charges which is paid by cheque or otherwise not claimed by the assessee.
After excluding this amount the expenditure claimed by the assessee. These expenses are otherwise reasonable considering the comparative expenses incurred in previous year which has been accepted by the AO in the earlier assessment orders framed u/s 143(3) of the Act. Hence, the adhoc disallowance of 20% made by the AO which was restricted to 10% by Ld. CIT(A). Considering details of expenses as narrated in the table and also the case laws cited by the ld. AR of the assessee, we do not concur with the findings of the ld.CIT(A).
-
2024 (11) TMI 356
Disallowance of the deduction claimed on account of lease rentals - Whether allowable revenue expenditure, being paid by Appellant to the owner of the leased assets for using those leased assets for the purpose of its business? - HELD THAT:- We find merit in the submission of the Ld. AR. Here in this case, the genuineness of lease rent has not been questioned by the authorities below. The reasoning for the disallowance is only that the same has not been debited in the books of accounts. Undisputedly, this claim has been made in the ITR in the computation of income.
As relying on Kedarnath Jute Mills Ltd. [1971 (8) TMI 10 - SUPREME COURT] we are of the considered view that the lease rent upheld by the Ld. CIT(A) is allowable expenditure. Decided in favour of assessee.
Disallowance of bogus conveyance & telephone expenses - HELD THAT:- Since nothing has been brought on the record by the Ld. AR to controvert and demonstrate that the finding of the CIT(A) is erroneous and needs interference. We therefore, in view of the facts of the case, do not find it fit to interfere with the finding of the CIT(A). This ground thus stands dismissed.
Taxability of sundry creditor - AR contended that the section 41(1) of the Act did not empower the AO to write off the sundry creditors - HELD THAT:- The sundry creditors are in the nature of credits in the Books of account and it is the duty of the appellant/assessee to explain and demonstrate the genuineness of sundry creditors, if questioned. The appellant/assessee is further required to controvert the finding of the CIT(A). It cannot be ruled out that these liabilities had not been disposed of earlier through cash or otherwise.
The idle/unaltered/static sundry creditors, in particular, require verification/investigation. Appellant/assessee deserves reasonable opportunity of being heard to make shortcomings or non-compliances. In view thereof, without offering any comment on merit of this issue, we deem it fit to set aside the finding of the CIT(A) in this regard and remit this matter back to the file of the AO for de-novo consideration. Appellant/assessee should ensure compliances during the set-aside proceeding before the AO. AO is also required to provide reasonable opportunities of being heard to the appellant/assessee before deciding this issue on merit.
Disallowance u/s 40(a)(ia) - AR submitted that the expenditure disallowed and offered for tax in earlier years due to the TDS default were claimed as expenditure after payment of TDS thereon in the relevant year - HELD THAT:- We find merit in the argument of the DR that it needs verification. We therefore, direct the AO to verify that whether the sum claimed as deduction in the relevant year has ever been offered for tax in earlier years and whether it is a case of late deposit of TDS or otherwise, etc. In case the same had been offered for tax in earlier year and it fulfills all the terms & conditions for allowability in the relevant year as per the law, the same has to be allowed accordingly.
-
2024 (11) TMI 355
Penalty levied u/s 271(1)(c) - additional income been offered voluntarily in the statement recorded u/s 132(4) - HELD THAT:- As no reference has been made to any corroborative incriminating material found during the course of search and penalty has been levied on the additional income been offered voluntarily in the statement recorded u/s 132(4). We are inclined to hold that the learned CIT (A) erred in confirming the penalty levied by AO u/s 271(1)(c) of the Act. - Decided in favour of assessee.
Penalty u/s 271AAB - undisclosed income / additional income surrendered by the assessee voluntarily - HELD THAT:- Undisclosed income is defined in clause (c) of the explanation to section 271AAB (1) of the Act and the same means any income of the specified previous year represented, either wholly or partly by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found during the course of a search, which are not recorded on or before the date of search in the books of account maintained in the normal course.
But under the given facts of the case, we find that no such incriminating material has been referred having nexus with the undisclosed income offered during the course of search. Now, this being the first step, which is sine qua non for proceeding ahead for visiting the assessee with the penalty under Section 271AAB of the Act and since the same is absent in the given case there is no jurisdiction left with the learned Assessing Officer to proceed with the initiation of penalty under Section 271AAB of the Act.
As decided in Shri Paras mal Jain [2023 (7) TMI 1080 - ITAT JAIPUR] where it has been held that income surrendered is not to be construed as an undisclosed income specified in clause (c) to explanation of Section 271AAB(1) of the Act - Thus delete the impugned penalty of ₹5 lacs levied u/s 271AAB - Decided in favour of assessee.
-
2024 (11) TMI 354
Non granting foreign tax credit relief u/s 90/90A - delay in filing Form No. 67 - HELD THAT:- We find that the decision of Bijender Singh [2024 (6) TMI 1397 - ITAT KOLKATA] is squarely applicable on the facts and circumstances of the case
We find that since the assessee has furnished Form 67 giving valid information about FTC on the foreign allowances received in Hungary, we direct the ld. Assessing Officer to accept the Form 67 and allow the alleged foreign tax credit in accordance with law. Thus, the sole grievance raised by the assessee in various grounds of appeal is allowed.
-
2024 (11) TMI 353
Reopening of assessment beyond period of limitation - Notice served beyond the time limit specified u/s 149 - HELD THAT:- Issue that notice u/s. 148 issued is barred by limitation is not correct sine the notice was issued within the period of six years on 28.03.2018 and there is no dispute regarding issuance of notice which was duly served on 02.04.2018.
We have gone through the provisions of the Act, it talks about the issue of notice, the section 149 is very much clear that notice must be issued within the period as per section 149(1)(a)/(b). The section talks about the time limit specified for issue of notice only and not for the service of notice within the period specified. Accordingly ground rejected.
Legality of assessment order and proceedings under the Insolvency & Bankruptcy Code, 2016 - Financial creditor petition has been dismissed and at the time of passing the order, the AO had no any information about the NCLT order. The assessee is unable to show that the information was given to the jurisdictional assessing officer before passing the reassessment order Accordingly ground No.3 is rejected.
Addition on the basis of documents submitted with Punjab National Bank which were audited financial statements - During the course of reassessment proceedings the notices issued by the AO were not complied by the assessee properly and a letter was written to the AO which is incorporated by the AO of his reassessment order. Accordingly with the consent of both the parties during the course of hearing, we remit the issue to the AO for de novo consideration and fresh decision as per law. The assessee is directed to file necessary documents that would be essential and required for substantiating its case and for proper adjudication by the revenue authorities.
Appeal by the assessee is partly allowed for statistical purposes.
-
2024 (11) TMI 325
Central Administrative Tribunal's (CAT) decision to set aside the charge-sheet against the Commissioner of Income Tax (Appeal) Kolkata/respondent - Charge against the respondent is to the effect that he has deleted an addition of while deciding an appeal in the hasty manner - order passed by the respondent in the appeal filed by the assessee, though once reversed by the ITAT but later on, pursuant to the direction given by the High Court at Calcutta, the ITAT has decided the issue regarding disallowance of sales commission and purchase commission to the assessee afresh and has remanded the matter to the Assessing Officer for deciding the issue afresh.
HELD THAT:- Though the petitioners has submitted that the said deletion was ultimately reversed by the ITAT in the appeal filed by the Revenue in the year 2011, however, it is to be noticed that the said order of the ITAT was interfered by the High Court at Calcutta and the matter was again remanded to the ITAT for deciding afresh the appeal filed by the Revenue after providing opportunity of hearing to the assessee and the ITAT has remanded the matter to the Assessing Officer to decide the issue afresh. In such circumstances, the whole premise of issuance of charge-sheet against the respondent has vanished.
Though the Department was aware about the alleged negligent act of the respondent since the beginning but has not taken any action against the respondent till passing of a fresh order by the ITAT, pursuant to the direction issued by the High Court at Calcutta. It is not the case of the petitioners that the Department was not aware about the said negligent act of the respondent, if any, and came to know about it only in the year 2017 when the memorandum of charges were issued against the respondent.
As observed earlier, the gravity of charge against the respondent has been diluted when the ITAT has remanded the matter to the AO for deciding the issue afresh and in such circumstances, the delay in initiation of the disciplinary proceedings against the respondent, in the present case, is fatal and on this ground alone, the memorandum of charges issued against the respondent is liable to be interfered with.
The Hon’ble Supreme Court in State of Madhya Pradesh Vs. Bani Singh & Anr., [1990 (4) TMI 286 - SUPREME COURT] in somewhat similar circumstance, has dismissed the challenge made by the State.
No merit in this writ petition and the same is, therefore, dismissed.
-
2024 (11) TMI 324
Retention of books of accounts and other documents contrary to the provision of section 132 (8) - Validity of recovery proceedings as well as the retention of the books of accounts and other documents seized during the course of search by the respondent-authority beyond the statutory period - HELD THAT:- Respondent-authorities are required to return the books of accounts and other documents within 30 days from the date of passing of the assessment order to the petitioner unless the reasons are recorded in writing for retention of the same with the approval of the higher authority specified in the said provision.
On perusal of the facts on record, it is apparent that the respondent-authorities have never communicated the reasons recorded to the petitioner and as such, the petitioner was not aware about the reasons for retention of the books of accounts and other documents which has prevented the petitioner from raising the objections before the Central Board of Direct Taxes as provided under sub-section (10) of section 132 of the Act.
The respondents by not providing reasons for almost two years has deprived the petitioner from raising objections for such retention. This itself is enough to hold that the respondents are not authorized to continue retention in spite of the fact that such retention is extended upto 30.04.2025.
This Court in case of Cowasjee Nusserwanji Dinshaw [1987 (3) TMI 106 - GUJARAT HIGH COURT] after analyzing the provisions of section 132 of the Act and conjoint reading of the provisions of sub-sections (8), (10) and (12) held “that the assessee must be communicated reasons recorded by the Authorized Officer on the basis whereof the Commissioner granted necessary approval”. Thereafter, considering the decisions of Oriental Rubber Work [1983 (11) TMI 1 - SUPREME COURT] it was held that failure to communicate the reasons recorded would render further retention of the account books and documents seized udder sub-section (8) of section 132 illegal, invalid and unlawful.
Thus, the respondent-authorities are not justified in continuing the retention of books of accounts and other documents contrary to the provision of section 132 (8) of the Act and the petitioner is entitled to receive the same forthwith from the respondent-authorities.
This petition succeeds and the respondent-authorities are directed to return the books of accounts and other documents seized during the course of search under section 132 (1) of the Act forthwith.
-
2024 (11) TMI 323
Reopening of assessment u/s 147 subsequent to insolvency proceedings - HELD THAT:- As in view of clear provisions of law no person would be entitle to initiate or continue any proceedings in respect of any claim for any dues relating to the period prior to approval of resolution plan.
In view of approval of resolution plan, all liabilities of all stakeholders including that of Government/ Statutory Authority shall stand extinguished after approval of the resolution plan. We therefore, deem it appropriate to quash and set aside the notices issued u/s 148 of the Act as well as the impugned order passed under Section 148A (d).
-
2024 (11) TMI 322
Ex-parte order passed based on old PAN number - as argued all the transactions of the Society have been accounted for in the books of accounts and audited reports and income tax returns have been filed with new PAN number. However, the department has issued notice to the old PAN number.
HELD THAR:- Suffice it to note that the department has issued a notice to the PAN which is available in their record. However, the petitioner contends that the notice was issued by mentioning the old PAN number, it could not give reply to the notice. Hence, this Court considers it proper to provide an opportunity for the petitioner to give reply to the 148 notice. Hence, the matter requires a remand. The assessment order, penalty order and demand notices are liable to be set-aside, so they are set-aside.
Writ of Certiorari is ordered. The order passed by the first respondent u/s 147 R/w Section 144 R/w Section 144B and the demand notice issued under Section 156 quashed.
-
2024 (11) TMI 321
Validity of Income tax assessment order - department has mechanically passed the order without considering the reply submitted by the petitioner from the proper perspective - HELD THAT:- The society has specifically contended that it is not registered under Section 12AA for the year 2018-19, hence provisions of Sections 11 to 13 of the Income Tax Act are not applicable. It has also claimed exemption under Section 10 (23) (iiiad) of the Act and placed reliance on the decision of M/s. CHILDREN’s EDUCATIONAL SOCIETY [2013 (7) TMI 519 - KARNATAKA HIGH COURT]. However, the respondent has failed to consider the reply from the right perspective and has mechanically passed the untenable order. Hence, the matter requires a remand. The order and the notice are liable to be set aside and so they are set aside. The matter is remanded to the respondents to the stage of reply to the 142 (1) notice. The petitioner is at liberty to file an added/ additional reply
-
2024 (11) TMI 320
Validity of reassessment proceedings beyond period of limitation - whether the assessment order dated 12.05.2023 and the consequent proceedings taken thereafter could have been so done when the notice u/s 148 was issued on 29.03.2021? - HELD THAT:- A perusal of sub-section (2) of Section 153 would indicate that assessment, reassessment, or recomputation shall not be made after the expiry of nine months from the end of the financial year in which the notice under Section 148 was issued. The proviso, however, provides that in respect of notices under Section 148 served on or after first day of April 2019, the period of nine months as aforesaid will be substituted by twelve months.
In the present case, notice has been issued on 29.03.2021, thereby making applicable the provisio to sub-section (2) of Section 153 requiring the reassessment to be made within twelve months from that date. Thus, we find credence in the submission made the petitioner that the reassessment was required to be completed by 31.03.2021. In the present case, the reassessment having been done by way of assessment order dated 12.05.2023 is beyond the period of twelve months indicated above.
Respondents submission as regards the ‘TOLA’, would be applicable to the present case would be liable to be rejected for the simple reason that the said Act was applicable to the period from 01.04.2020 to 30.06.2021. In the present case, the notice having been issued u/s 148 on 29.03.2021, is within the period of extended limitation and therefore, the notice having been issued under Section 148, the rigor of proviso to sub-section (2) of Section 153 would be equally applicable.
Thus the reassessment order dated 12.05.2023 and all actions taken pursuant thereto would be non-est. Decided in favour of assessee.
-
2024 (11) TMI 319
TP Adjustment - comparable selection - excluding Infosys BPO Ltd. and TCS E-serve Ltd. from the list of comparables - HELD THAT:- As decided in Transcend MT Services Pvt. Ltd [2024 (7) TMI 1548 - DELHI HIGH COURT] as for Infosys BPO Ltd. and TCS E-Serve Ltd. is concerned, it could not be disputed before us that they were mega entities and could not have been included in the list of comparables bearing in mind the judgment rendered by the Court in CIT v. Agnity India Technologies Pvt. Ltd. [2013 (7) TMI 696 - DELHI HIGH COURT] No substantial question of law.
-
2024 (11) TMI 318
Addition u/s 69C and 68 - undisclosed credit card expenditures in foreign currencies - material found during the course of survey proceedings - AO proceeded to make the addition u/s 69C by converting the amount of foreign currency spent by the assessee utilising 1 US $ = Rs. 55 & 1 UK Pound = Rs. 82 and made the addition
HELD THAT:- AO being the jurisdictional officer to the respective assessee has to make the investigation on receipt of those information’s whether these information’s are pertained to the assessee and has to form an opinion and reasons for reopening of the assessment. Whereas, in the present case, a survey proceeding was initiated in the case of the assessee itself and not the information passed on by DIT (Inv.) from a third person.
The survey conducted in the case of the assessee revealed that assessee was in possession of various credit cards and the information contained in the mobile of those credit cards enabled the assessee to utilize the same wherever he is. Assessee being a resident in India holding various international credit cards of various friends and relatives and the assessee was able to utilize the same wherever he is. When the Investigation Wing asked for details, the assessee was not able to provide the same nor submitted any information during the investigation.
The same was forwarded to the AO and AO having jurisdiction over the assessee and after verification of the information available on record, the information forwarded by the Investigation Wing was not reflected anywhere in the information available with the AO - AO has no option but to reopen the assessment to make further investigation. Accordingly, the AO also issued notice u/s 143(2) of the Act to collect the information. In response only, assessee attended the proceedings and submitted the relevant information. Therefore, the submissions of the assessee and relying on the decision of Hon’ble Delhi High Court are distinguishable to the facts on record. Accordingly, grounds raised by the assessee are dismissed and also we observed that ld. CIT (A) has elaborately discussed the above points and rightly dismissed the grounds raised by the assessee.
Addition u/s 68 and 69C - As observed that assessee was found with the information in his mobile relating to several credit cards in US $ and UK Pound which belongs to assessee, his friends/relatives including his wife. Since the information relating to these credit cards are in the mobile of the assessee, as the assessee was able to utilize the same without the presence of any of the relatives and friends. Therefore, when the details were called for from the assessee and the assessee was not in a position to explain the same before the DIT (Inv.) and before the Assessing Officer, it clearly indicates that assessee has utilised the funds through these credit cards for his personal use and none of the parties or friends who are the owners of the credit cards never filed any proof/documents or affidavit to claim the same as belong to them. In absence of any material before the AO, the AO has no option but to make the addition in the hands of the assessee. Therefore, we do not see any reason to disturb the findings of the ld. CIT (A). Accordingly, grounds raised by the assessee are dismissed.
Unexplained money received through Ananda Heritage Hotels P. Ltd. on a protective basis - Coming to the appeal preferred by the Revenue, we observed that the investment was made in Ananda Heritage Hotels P. Ltd. through M/s. Wilton Investment Ltd. and it is a fact on record that these investments were made through Wilton Investment Ltd. and the transaction is of share application money. Ananda Heritage Hotels P. Ltd. being an independent person accordingly Assessing Officer has made substantive addition in the hands of Ananda Heritage Hotels P. Ltd. and made the addition protectively in the hands of the assessee. We observed that ld. CIT (A) has observed the above facts on record and deleted the same in the hands of the assessee. Therefore, we do not see any reason to disturb the same. Accordingly, the appeal filed by the Revenue is dismissed.
-
2024 (11) TMI 317
Ad hoc disallowance @ 10% of the personnel expenditure - HELD THAT:-AO noticed from the Profit and Loss account statement that assessee has claimed expenditure of personnel expenditure, however he has mistook that assessee has claimed personal expenditure without providing any documentary evidences.
Addition made by the AO is nothing but elementary mistake by presuming the expenses claimed by the assessee as personal expenditure instead of personnel expenditure. Since the assessee has brought to our notice details of payment of salaries and wages to various employees and even AO failed to ask for any details before making such ad hoc disallowances, we are inclined to delete the addition made by the AO which is a mistake apparent on record and clearly mistaken presumption. Decided in favour of assessee.
-
2024 (11) TMI 316
Reopening of assessment u/s 147 - notice beyond four years - HELD THAT:- We are of this opinion that conditions precedent for reopening of the assessment beyond four years are not satisfied. There is no allegation of suppression of material fact. Accordingly, this issue is decided in favour of the assessee thereby holding that reopening after four years is bad in law. On this score only, the assessment proceedings and further proceedings of the ld. CIT(A) cannot be said to be valid, accordingly set aside.
Jurisdiction passed by ITO, Ward-2(1), Patna for Issuance of notice - We have gone through the disposal of objection with regard to the jurisdiction passed by ITO, Ward-2(1), Patna that reflects that the issue of jurisdiction has been denied only on this ground that earlier jurisdiction lies with AO, Patna since issue of the PAN and as per the AO since no objection whatsoever has been raised by the earlier, hence, jurisdiction lies on the AO, Patna.
We hereby hold that the issuance of notice by the AO, Patna is bad in law and on this score also, order passed by the ld. AO as well as ld. CIT(A) is against the law and accordingly, both the orders are hereby set aside. Appeal filed by the assessee is allowed.
-
2024 (11) TMI 315
TDS u/s 195 - addition of expenditure for IT service charges u/s 40(a)(ia) - treating such expense incurred by the assessee company as fees for technical services/royalty - HELD THAT:- We find that in the case of assessee itself for assessment years 2012-13, identical additions were made but the Co-ordinate Bench of this Tribunal has already decided the issue in favour of the assessee [2020 (1) TMI 1641 - ITAT PUNE] held payment for use of software made by the assessee to CMA CGM, France does not satisfy the requirement of ‘use of, or the right to use, any copyright of software’. Once it is held that para 3 of Article 12 is not attracted, as a sequitur, the application of clause (a) of para 4 of Article 12 of the DTAA with Portuguese would automatically be ousted, thereby making the amount paid by the assessee to CMA CGM, France for use of LARA, DIVA and Ocean software as immune from taxation in India. Going by the beneficial provision in the DTAA vis-à-vis the Act, it is held that there was no requirement on the part of the assessee to deduct tax at source which should have called for any disallowance u/s. 40(a)(i) of the Act - Decided against revenue.
-
2024 (11) TMI 314
Addition as on-money payment made for the purchase of property - CIT(A) deleted addition - DR submitted that based on the seized material found in the form of Excel Sheet which was created on the date of Registration of the sale deed certain cash transactions were recorded by the sellers of the property - HELD THAT:- AO has not brought on record any corroborative evidences against the assessee apart from the Excel Sheet seized from the third party or by relying on the return of income filed by the sellers of the property. On perusal of the seized annexure in the form of Excel Sheet, we find that the contents does not have any nexus to the assessee such as name of the assessee or details of the property purchased by the assessee.
Except, the seized document in the form of Excel sheet, the Ld. AO has not related the entries in the Excel sheet by way of independent corroborative evidences involving the nexus of the buyer and the property details, we are of the view that Ld. AO has erred in considering the amount as on-money payment by the assessee.
Excel Sheet was found in the premises of M/s. Meenakshi Agro Chemicals for which the assessee is not at all related. We also observe from the order of the Ld. AO that no incriminating material has been seized from the premises of the assessee. We also find that Ld. AO has not conducted any independent enquiry on the contents of the Excel Sheet by linking it to the assessee and bringing any material on the record that the assessee has transferred cash to the sellers.
As relying on the case of K.V. Lakshmi Savitri Devi [2012 (12) TMI 1111 - ANDHRA PRADESH HIGH COURT] we find that the CIT(A) has rightly concluded by deleting the addition made by the AO we find no reason to interfere with the order of the Ld. CIT(A) on this ground - Decided in favour of assessee.
............
|
9911796707
