|
Advanced Search Options
Income Tax - Case Laws
Showing 381 to 400 of 168845 Records
-
2024 (11) TMI 150
Unexplained bank deposits - assessee is an Individual and is an aged lady. She is engaged in the business of selling religious items like Sandal wood, Janoi, Diva etc in a Parsi Temple - assessee submitted that she has voluntarily disclosed the Gifts amount as her undisclosed income under PMGKY Scheme in order to avoid any dispute and get peace of mind.
HELD THAT:- We notice that the assessee is an old lady and she was residing in a joint family consisting of her family and her husband’s brother’s family.
It is noticed that the family of the assessee was small and consequently, the domestic expenses could be lower. Since the assessee is carrying on a business on small scale for the past several years, it cannot be denied that she could have saved money over the years. The assessee could not prove this claim with evidences, since she was not required to maintain books of accounts under the law. It is also possible that the said savings could be from her own business and other own sources and it may include money received from her husband also over the years.
Accordingly, considering her age and the business activities carried on by her, we are of the view the claim of past savings of Rs. 7,20,000/- could be accepted.
Assessee has voluntarily disclosed a sum under PMGKY scheme, which fact shows that money, which could not be explained was offered as income. The corollary is that the assessee was sure that her explanations with regard to the claim of past savings of Rs. 7,20,000/- would be accepted. Accordingly, we are of the view that the genuineness of her claim may be accepted. Accordingly, we set aside the order passed by Ld CIT(A) and direct the AO to delete the addition of Rs. 7,20,000/-.
Balance amount it is claimed that the same has been inherited from her husband’s brother’s wife. The fact would remain that the said deceased lady was 87 years old when she died. It is stated that she was also carrying on a business on a small scale and it is possible that she could have also made savings over the years out of her income and out of the money given by her husband. The assessee has proved that she is the lone surviving heir of the deceased lady by furnishing the details of flat inherited from her. We also noticed that the assessee has voluntarily disclosed her unexplained money of Rs. 5,72,000/- under PMGKY scheme and we have held earlier that the said voluntary action of the assessee should also be considered while examining the veracity of the claim made by the assessee. Accordingly, we are of the view that the claim of inheritance of Rs. 7,80,000/- from her husband’s brother’s wife, in the facts and circumstances of the case, could not be brushed aside. Accordingly, we hold that the said explanation may be accepted. Accordingly, we set aside the order passed by Ld CIT(A) and direct the AO to delete the addition of Rs. 7,80,000/- also.
Assessee appeal allowed.
-
2024 (11) TMI 149
TDS u/s 194L - Demand u/s. 201(1) and 201(1A) on account of failure to deduct TDS on payments were made for acquisition of agricultural lands - determination of the exact nature of the lands - assessee is claiming it to be agricultural in nature v/s AO has held it to be urban - CIT(A) relying on reports of other District Authorities, Kunti held that as per the provisions of the Act, the assessee was not liable to deduct TDS since the impugned lands were agricultural in nature.
HELD THAT:- As per Section 250 (4) CIT (A) shall, by himself or through an assessing officer, make necessary inquiry before adjudicating any appeal. In the present case, it was incumbent on the ld.CIT(A) to clearly bring on record the basis of their respective claims as made by other all district authorities. Neither any examination of these authorities has been done by him nor any reason cited for brushing aside the report of the Executive Officer, Khunti which has been heavily relied upon the ld.AO. He has considered a one-sided version to be correct which, to our mind is not a judicious approach on his part. In such a situation, the matter needs to be remanded back to the ld.CIT(A) to arrive at a conclusion by examining the authorities concerned, so as to find out the actual basis for their respective contentions.
During the hearing, the ld.CIT(DR) expressed satisfaction with a restoration of the matter to the CIT(A) for reconsideration of the issue in hand. Thus, in the in the interest of justice, we deem it appropriate to allow the appeal for statistical purposes, emphasizing the need for a thorough and compliant adjudication process. Appeal of the Revenue are allowed for statistical purposes.
-
2024 (11) TMI 148
Unexplained money u/s 69A - cash deposits during the demonetization period - HELD THAT:- It is an admitted fact that the assessee has withdrawn Rs. 1,20,000/- on 22.07.2016 and Rs. 13,80,000/- on 28.07.2016 from the bank account - AR demonstrated the withdrawals by filing the bank statements. On perusal of the bank statements, it is noticed that the assessee has withdrawn cash after redeeming mutual fund investments. However, we are not able to accept the cash balances available with the assessee on the date of deposits arising out of the rental income or any other past savings in the absence of any documentary evidences provided for the same, even before us.
Further we also notice from the Income Tax Returns submitted by the assessee, rental income is being adjusted against the interest payment on the housing loans. We are therefore of the considered view that assessee has properly explained the sources of cash with respect to the withdrawals made by the assessee during July 2016 aggregating to Rs. 15,00,000/- and hence we consider amount of Rs. 15,00,000/- as properly explained by the assessee. We therefore direct the AO to allow amount of Rs. 15,00,000/- as properly explained by the assessee.
TDS u/s 194IA in the case of joint co-owners for the property - Treating the assessee as “assessee in default” - submissions made before revenue authorities stating that there are three joint owners as evidenced by the sale deed - HELD THAT:- As reading section 194-IA we noticed that “transferee” responsible for paying to a resident “transferor” any sum by way of consideration for transfer of any immovable property is subject to deduct TDS @1% at the time of credit of such sum to the account of the transferor. In the instant case, it is evidenced by the sale deed submitted before us that there are three transferors holding equal shares in the property.
Accordingly, the sale consideration of Rs.99 Lakhs is being shared by the three transferors at Rs. 33 Lakhs each. The revenue is not in dispute with respect to consideration of Rs. 99 lakhs.
Since there are three joint co-owners the provisions of section 194-IA shall not be apply where the consideration for each co-owner is below the specified limit of Rs. 50 Lakhs and hence demand raised by the revenue becomes unsustainable. We are therefore allowing the grounds of appeal raised by the assessee.
-
2024 (11) TMI 147
Disallowing TDS claimed by invoking provisions of Rule 37BA - assessee is a "Kaccha Aaratiya" engaged in selling agriculture produce on behalf of the farmer to the principal buyer - HELD THAT:- After evaluating rule 37 BA, we found that this rule envisages allowance of TDS credit in proportion to the income declared by the assessee. This proportion needs to be established for every nature of receipt on which TDS has been claimed by the assessee, therefore while allowing TDS claimed under each section, it has to be ascertain that entire income on which TDS has been claimed is duly offered in the ITR by the assessee and in case the income so declared for each nature of receipt on which TDS has been claimed, is lesser than that appearing in form 26AS then only CPC May deny the credit of TDS for relevant nature of receipt.
Since the receipt of interest and Commission on which TDS has been claimed u/s 194A and 194H are fully declared in ITR, therefore the entire TDS claimed under section 194A and 194H needs to be fully allowed. Hence the proportionate TDS, disallowed to the extent of rupees 179551, is absolutely unjustified and therefore deserves to be allowed and thus, we order accordingly.
Balance TDS credit being TDS under section 194Q - AR has drawn our attention to sample invoices on which TDS was deducted under section 194Q by the principal buyer and the corresponding Vikray Parchi issued by the Mandi to the respective farmers. These documents clearly show that the amount invoiced by the assessee to the principal buyer and the value of goods transferred by assessee to the farmer is exactly the same. Therefore turnover of kutcha aaratiyan is merely the commission paid by principal buyer on which the principal buyer deducts TDS under section 194H and which has been duly shown as income in the ITR by the assessee, therefore the TDS deducted by such principle buyers by virtue of provisions of section 194 Q is eligible to be claimed by the Kaccha aaratiya in his ITR on the Grounds that the assessee is a kacha arhatia and is duly registered as such with the Ramganj mandi, Kota.
Perusal of the ‘vikray parchi’ issued at the mandi to the farmers and the corresponding invoice raised by the assessee to the principal buyer undoubtedly establishes the fact that the assessee has no control or margin in the sale facilitated by him and earns merely commission from such transactions. Assessee has no domain over the goods sold to the principle buyers.
And as clarified by Central Board of Direct Taxes in its circular no. 452 (1986) so far as Kachha Arahitias are concerned the turnover does not include the sales effected on behalf of principals & only commission (gross) has to be considered for the purpose of Income tax section 44AB .
TDS deducted u/s 194Q by the principle buyers cannot be refused by invoking Rule 37BA r.w.s. 199 of the Act, as the sales facilitated by the assessee for the farmers is not the turnover of the assessee and the income from such transaction (commission) being duly offered for tax by the assessee in his ITR, the TDS deducted both u/s 194H and 194Q deserves to be fully allowed. Further the Form 26AS also depicts that the invoices on which TDS have been deducted u/s 194Q also has TDS deducted u/s 194H of the Act. Thus the contention of the assessee that he is merely a ‘kachaa arhatia’ is potrayed beyond all doubts and needs to be accepted.
See Madan Lal Gupta case [2024 (4) TMI 1174 - ITAT JAIPUR] wherein on the similar issue TDS claimed under section 194Q was fully allowed in the case of kutcha aaratiya - direct the AO to allow the TDS claimed under section 194Q by the assessee.
Assessee appeal allowed.
-
2024 (11) TMI 146
Addition u/s 68 - bogus share transactions - HELD THAT:- The appellant made purchases and sales of the shares through SEBI registered share broker being member of the recognized stock exchange. The shares are duly reflected in the transaction of the share statement of the assessee and payment & receipt of the consideration of the share value are reflected in the bank account of the appellant assessee.
It admits of no doubt that SEBI is the sole authority regulating the share trading and, in its order, SEBI has held that M/s. India Infotech and Software Ltd. is not a shell company that the company was not involved in any manipulation in the price of the scrip and consequently no fraud or unfair advantage was done due to any shareholder or investor.
We have also gone through the copy of contract note towards sale of the shares which has been field by the assessee in the paper book that goes to show that the average price of the share for this company in January 2022 was around Rs. 10/- per share. It is also made clear that SEBI has itself stated in its order that there is no misappropriation of funds of the company nor there is any manipulation in the price of the scrip. SEBI has further held that no disproportionate gain was caused to anyone nor created any unfair advantage to the appellants nor any specific loss was caused to any investor.
There was nothing before the AO to establish any collision with any of the person involved in the manipulation of the price of share of M/s. India Infotech and Software Ltd. How the AO and ld. CIT(A) come to this conclusion that the assessee could not be able to prove the genuineness of the transaction.
It is an undisputed fact that assessee has sold 2,85,000 shares of M/s. India Infotech and Software Ltd. at a price ranging from Rs. 19/- to Rs. 22/-. The shares were traded through Demat account of the assessee held with Kotak Securities Ltd., a world-wide renowned company. Copy of the contract note towards sale of the shares has also been brought before us and the same was also brought in the notice of ld. CIT(A). It is also important to mention here that the share of this company has gone as Rs. 48.6/- and as such if the assessee was so inclined and involved in receiving bogus capital gains, then the assessee would have sold the shares at the highest pick point and not in the range between Rs. 19/- to Rs. 22/- per share.
Keeping in view the facts of the case, documents filed by the assessee as well as going over the cited decisions, especially the order passed by SEBI in favour of M/s. India Infotech and Software Ltd., we are of this view that additions are erroneous and liable to be deleted. Decided in favour of assessee.
-
2024 (11) TMI 145
Revision u/s 263 - Eligibility of the assessee for exemption u/s 11 - as per CIT AO inadvertently allowed exemption u/s 11 but the assessee filed return of income during reassessment proceedings only, thus exemption would not be available to the assessee
HELD THAT:- The impugned revision of the order u/s 263 is certainly bad-in-law. It is undisputed fact that the assessee is enjoying the exemption as applicable to a charitable trust since 1954. It has been granted this exemption in scrutiny assessment for AYs 1980-81, 1987-88 and 1988-89. The issue of exemption has been decided in assessee’s favor by the Tribunal for AYs 2002-03, 2007-08 and 2010-11.
Assessee has not filed the return of income as mandated u/s 139(1) - The circumstances under which the return of income could not be filed have not been considered in the required perspective. Due to efflux of time and change in office bearers of the assessee trust, the grant of registration by the CIT-TN III could not be traced and hence the reference thereto by way of identification as C. No. could not be furnished in the returns of income for AY 1997-98.
In the era of electronic filing of return of income w.e.f. 01-04-2013, the mentioning of this information became mandatory and the assessee was unable to e- file the returns for AYs 2013-14 to 2015-16. Ultimately, the assessee sought fresh registration which was granted on 09-06-2016. To ensure compliance of Sec.139(1), the assessee made efforts to file the returns of income in physical mode and unfortunately, in the absence of such information, the same was also not accepted at Tapal center of the department. Left with no option, the assessee dispatched the returns through registered post which is evidenced by postal acknowledgements. The Ld. CIT(A), though admitted receipt of post on 03-10-2013, doubted the contents of the same without verifying the submissions of the assessee.
Therefore, revision of the order could not be upheld in the eyes of law. Assessee appeal allowed.
-
2024 (11) TMI 144
Demand u/s 201(1)/201(1A) - ‘assessee in default’ towards non-deduction of TDS u/s 194I on lease rent paid to NOIDA Authorities - second round of proceedings - assessee contends that the assessee acted under bona fide belief that payment towards lease rental is not susceptible to provisions of Section 194-I in view of specific communications made by the NOIDA Authorities on the applicability of Section 194-I of the Act AND applicability of the observations and conclusions in Rajesh Projects [2017 (2) TMI 1109 - DELHI HIGH COURT] is prospective.
HELD THAT:- On appraisal of the factual matrix and the position of law, we find considerable force in the plea raised on behalf of the Assessee. The assessee has successfully demonstrated the existence of bona fide belief. This demonstration on standalone basis enables us to exonerate the assessee from the clutches of Section 201(1) and 201(1A).
We however further find that the operation of the judgment in Rajesh Projects (supra) have been made prospective as mentioned in paragraph 20 of the judgment. The cause of action under Section 201(1)/201(1A) in pursuance of the judgment of the Hon’ble Delhi High Court is thus not available to the Revenue for A.Y. 2012-13 in question.
We also find that in the identical factual matrix, the Co-ordinate Bench [2023 (12) TMI 1368 - ITAT DELHI] has granted relief similar to what is claimed in the present case. Thus, we have no hesitation to set aside the first appellate order and quash the impugned order passed u/s 201(1) and 201(1A) of the Act under challenge. Decided in favour of assessee.
-
2024 (11) TMI 143
Denial of exemption u/s 11(2) - trust has not filed Form No. 10 within the due date specified u/s 139(1) due to technical issues - HELD THAT:- Under the provisions of section 11(2) of the Act, any charitable trust has to apply certain specified percentage of income (which was 85% during relevant period) for charitable purpose, but if income to that extent is not applied to the prescribed percentage, then the assessee can accumulate or set apart said income for application to such purposes in India subject to the conditions prescribed in section 11(2) of the Act.
Whether for availing exemption u/s 11(2) of the Act, the requirement of furnishing statement in prescribed form No. 10 on or before the due date of the filing of the return of income is mandatory in nature or directory in nature? - We find that in judgement of the Hon’ble SC in the case of PCIT Vs Wipro Ltd. [2022 (7) TMI 560 - SUPREME COURT] has held that for claiming the benefit under Section 10B(8) of the IT Act, the following twin conditions are Mandatory, firstly, furnishing a declaration to the assessing officer in writing that the provisions of Section 10B (8) are applicable to him; and secondly, the said declaration has been furnished on before the due date of filing the return of income under sub-section (1) of Section 139 of the IT Act. The Hon’ble Supreme Court observed that the wording of the Section 10B (8) is very clear and unambiguous, therefore the audit report prescribed in form 10CCB of the Income-tax Rules, 1962 must be furnished before the due date of filing the return of income under sub-section (1) of section 139.
Thus, in view of the decision of Hon’ble Supreme Court, it is mandatory for the assessee to file the prescribed form No. 10 along with the return of income filed for the relevant year.
The assessee has filed a copy of the grievance petition, which was filed on Income-tax Portal on 21.03.2022 where he has submitted that assessee could not file the form due to technical glitches on the portal of the Income-tax Department. Thus it is evident that delay is within the period of 365 days and the assessee was prevented by sufficient and reasonable cause in filing the Form No. 10. Thus, we set aside the order of the CIT(A) and restore the matter back to the file of the AO with the direction to the assessee for applying to the concerned commissioner of Income-tax (Exemption) and seek condonation for delay in filing Form No. 10. After condonation of delay in filing for No. 10 by the CIT (E), the AO shall decide the claim of exemption u/s 11(2) of the Act in accordance with law. The grounds allowed for statistical purposes.
-
2024 (11) TMI 98
Review petition filled belatedly - Exemption u/s 10(23C)(iv)/11/12 - activities of the respondent/assessee qualify for charitable purpose in view of the Proviso to Sec 2(15) or not? - as decided by SC [2023 (6) TMI 1044 - SC ORDER] HC correctly granted approval to the petitioner u/s 10(23C)(iv)
HELD THAT:- Application for listing Review Petition in Open Court is rejected.
There is an inordinate delay of 247 days in filing this Review Petition which has not been satisfactorily explained. Even otherwise, having carefully gone through the Review Petition, the order under challenge and the papers annexed therewith, we are satisfied that there is no error apparent on the face of the record or any merit in the Review Petition, warranting reconsideration of the order impugned.
Accordingly, the Review Petition is dismissed both on the ground of delay as well as on merits.
-
2024 (11) TMI 97
Accrual of income - Nature of receipt - excise duty refund - capital receipt and claimed as exemption u/s 10 or revenue receipt and taxed accordingly - hypothetical income or real income - addition as hypothetical income which has not actually accrued - Assessee had been following the mercantile system of accounting - HELD THAT:- In the mercantile system of accountancy, the book profits are taken for the purpose of assessment of tax, though the credit amount is not realized or the debit amount is not actually disbursed; meaning thereby, in the present case, the impugned amounts as brought to tax by the Income Tax Officer did not represent the income which had really accrued to the assessee-respondent herein during the relevant assessment year.
It is settled law that income tax cannot be levied on hypothetical income and only real income can be taxed. Therefore, recording of entries in the books of accounts is not conclusive to determine the income under the provisions of law.
As such, we are in full agreement with the learned regional Income Tax Tribunal, that whether an amount is to be considered as income or not is to be determined on the basis of the Income Tax Law and not on the basis of the entries made in the books of accounts; that no tax can be charged on an amount which is not actually earned and that the learned Tribunal was right, in deleting the addition as hypothetical income which has not actually accrued, which was otherwise 64% of the excise duty recognized by the assessee in its books of accounts.
In view of insertion of Clause (xviii) to Section 2 (24) introduced by the Finance Act, 2015, any subsidy, grant, cash incentive, duty drawback, waiver, concession and reimbursement referred to in the said clause is considered as income and only because the word ‘exemption’ is not mentioned therein, it is not open for the tax payers to interpret the same as per their own convenience - Admittedly, as per Black’s Law Dictionary (Sixth Edition) ‘exemption’ means freedom from a general duty or service; immunity from a general burden, tax, or charge, immunity from service of process or from certain legal obligations, as jury duty, military service, or the payment of taxes. Whereas, ‘subsidy’ means a grant of money made by government in aid of the promoters of any enterprise, work, or improvement in which the government desires to participate, or which is considered a proper subject for government aid, because such purpose is likely to be of benefit to the public.
In the present case, the assessee is exempted from making payment of excise duty to the extent of 36% of the total excise duty collected, meaning thereby the same is not subsidy given to meet the cost of the project. Therefore, we are also in full agreement with the learned Tribunal that exemption from excise duty does not fall in the definition of income as envisaged u/s 2 (24) (xviii) of the Act and that the amount is not an income but a capital receipt not taxable under the provisions of the Income Tax Act.
-
2024 (11) TMI 96
Taxation of receipts - Accrual of Income Vs. Deferred Revenue - Annual Maintenance Charges” (AMC) collected by assessee in advance from its customers for maintenance of Lifts installed and commissioned by the respondent-assessee - assessee is following mercantile system of accounting - Assessee had treated the same in their Books of Accounts as a “current liability” viz., “Income Received in Advance” - Tribunal deleting the addition made by the Assessing Officer (AO) on account of Annual Maintenance Charges (AMC) received in advance and shown by the assessee as liability in the balance sheet especially when the period of Annual Maintenance Charges (AMC) was only one year
HELD THAT:- As from the nature of service provided and the monopoly exercised by reputed lift companies like respondent-assessee company, the customers have no choice. They have no choice to opt for services of other lift service providers for the lifts installed by companies like the respondent-assessee. The software which is used for operating the lifts is not freely available and never shared by the lift companies with the customers. If the contract for Annual Maintenance Service is not renewed, the cost of maintenance and running of the lifts will high and usurious as the respondent-assessee has the monopoly over not only the software but also the spares as they are not available in the open market.
Even if the customer opts to terminate the contract, the respondent-assessee is not bound to refund the amount. If the customer opts to terminate the contract, the customer will still be at the mercy of the respondent-assessee should the lift malfunction. The business model which the respondent-assessee follows in so far as service under the Annual Maintenance Contract is concerned, it leaves no scope for uncertainties as far as income for provision service under its AMC model is concerned.
Assessee would have been liable to pay tax under Section 65(64) r/w Section 65(105)(zzg) of the Finance Act, 1994 in the same quarter of it's receipt. Similarly, the same activity could also have been liable to tax under Section 5 of the TNVAT Act, 2006 and liable to tax under succeeding months. This is also confirmed in Schedule 11 to the Balance Sheet of the Respondent-Assessee.
In fact with effect from 1st of April 2011 for the purpose of determination of tax liability, “The Point of Taxation Rules, 2011” was also framed by the Central Government vide Notification No.18/2011 ST dated 01.03.2011. As per Rule 3 of the Point of taxation Rules, 2011, the point of taxation is at the time when invoice for service provided or agreed to be provided is issued.
As per Rule 6 (b) of the Point of Taxation Rules, 2011 (as it stood then and since omitted), in a case where the persons providing service receives payment before the time of issuance of invoice, the time when he receives such payment to the extent of such payment shall be point of taxation.
Thus the authorities, who are responsible for collecting indirect tax for the service provided would have treated the amount received towards that liability, the moment payment are received.
There is also no dispute that the amount was collected by the appellant in advance towards Annual Maintenance Charges (AMC). The advance is a revenue in its hands at the time of its receipt. It is taxable in the year of its collection, as is contended by the Appellant/Income Tax Department. Further, there is no uncertainty in the amount of consideration derived for rendering of service and the amount is nonrefundable.
Thus, we answer the substantial questions of law in favour of the Revenue and against the respondent-assessee.
-
2024 (11) TMI 95
LTCG - relevant date, by virtue of which the transfer of rights in favour of the assessee had taken place - Date of Right to own the property was established/ accrued to the Appellant - Correct date of transfer of tenancy rights - ITAT held that the transfer of the property in question took place in favour of the assessee on 04 November 2004 and not on 22 February 2007 when the Deed of Confirmation was registered
HELD THAT:- We find substance in the contention as urged on behalf of the assessee. It is clear from the appeal memo as filed by the assessee before the Tribunal that the ground, which was inter alia raised before the Tribunal, was whether the tenancy rights were converted into ownership rights, as per the consent decree dated 28 May 1999 and not in A.Y. 2007-08 when the agreement giving ownership right was registered through a transfer deed, which was in fact registered on 22 February 2007.
It clearly appears from the observations which are made by the Tribunal that the Tribunal did not adjudicate on those specific grounds, which were raised, however, it delved to adjudicate on an issue which was not raised by the Revenue namely that necessarily the transfer ought to be recognized to have taken place on 04 November 2004 when tripartite agreement was entered between the parties.
Keeping aside the core issue as raised in ground 1 as raised by the Revenue, which was either the rights having crystallized as per the consent terms dated 28 May 1999 or on 22 February 2007, when the Deed of Confirmation was registered and relevant to the A.Y. 2007-08 the Tribunal decided to adjudicate on an issue which was not specially put to the parties. It is thus the case that the Tribunal decided to keep aside the specific ground as raised by the Revenue and without adjudicating on such ground, has proceeded to decide an issue which in fact had not fell for consideration and/or not raised by the Revenue specifically.
Thus there was an apparent error of law in the approach of the Tribunal in deviating itself from the course of adjudication of the appeal when the specific grounds which were raised by the Revenue were not adjudicated and in fact, what was adjudicated, was on a question which was not raised by the Revenue as any of the grounds even remotely in the memo of appeal. It is also not case that the revenue has raised any additional ground in the manner known to law so the Tribunal has jurisdiction to delve on such issue
We may observe that it can never be the scope of judicial adjudication which would delve on an adjudication alien to or not call upon to be answered. Adjudication of the Tribunal would be confined to the ground which was raised and which were supposed to be contested by the assessee in the present case.
We are, therefore, of the clear opinion that on such limited ground, the orders passed by the Tribunal would be required to be set aside and the proceedings be remanded before the Tribunal for a denovo adjudication, however keeping open all contentions of the parties on the facts and on law. We accordingly answer question (b) in favour of the assessee and against the revenue.
-
2024 (11) TMI 94
Legality and validity of the order passed u/s 264 - Entitlement to claim benefit under Sections 11 and 12 - HELD THAT:- It is not in dispute that the petitioner has incurred expenditure for the year under consideration which was towards the application of income as required under section 11 (1) (d) - From the computation of total income as well as Form No. 10B issued by the Chartered Accountant, it is evident that the amount of income applied is clearly shown however, same is not reflected in Form ITR-7 uploaded by the petitioner copy of which is placed on record at page–17 of the petition wherein in column no.9 clearly shows Nil amount with regard to the application of income for charitable or religious purpose. In such circumstances, when the petitioner has incurred the expenditure and applied income/donation received by it for the charitable purpose, the petitioner is entitled to benefit of the same and the respondent ought to have taken into consideration this fact while deciding the revision application under section 264.
As relying on Shree Rudra Technocast Private Limited [2024 (10) TMI 186 - GUJARAT HIGH COURT] Impugned order passed u/s 264 is hereby quashed and set aside and the matter is remanded back to the respondent to pass a fresh de novo order u/s 264 on merits while considering the fact which is not in dispute that due to technical glitch the income applied by the petitioner is not reflected in return of income in Form ITR-7 and the same is required to be taken into consideration while computing the income and the tax for the year under consideration.
-
2024 (11) TMI 93
Reopening of assessment - reasons to believe - information received by the AO that the petitioner has obtained the accommodation entries - HELD THAT:- The objections raised by the petitioner alongwith the copy of the ledger accounts placed on record, it is evident that the petitioner had repaid the amount towards the opening balance as on 01.04.2014 during the year under consideration and there is no other transaction which is shown in the ledger account. It is therefore apparent that the information which was received by the respondent Assessing Officer with regard to the alleged accommodation entry received by the petitioner assessee seems to be not borne out from the reasons recorded.
Thus, from the above reasons, it is clear that the same is contrary to the facts available on record and therefore, the Assessing Officer could not have assumed the jurisdiction for both the years as for the Assessment Year 2016-17 also the amount as already part of the ledger account for the Financial Year 2015-16 and admittedly, there is no transaction with the said entity by the petitioner during the relevant previous years to the Assessment Year 2016-17. Decided in favour of assessee.
-
2024 (11) TMI 92
Addition u/s. 41 (1) r.w.s. 28 (iv) - as per AO there is no liability of the assessee to repay the amount and assessee has been benefited by the advances received by it in the financial year 2001-02 and there was cessation of liability as the same has ceased to exist - According to the assessee, the said amount was received against the project to be carried out but could not be implemented and the amount was not returned by the assessee due to financial constraints.
HELD THAT:- There are concurrent findings of fact arrived at by the CIT (Appeals) as well as the Tribunal to the effect that though the assessee has received the advance against the project which had never been implemented and the amount was never returned by the assessee, the theory adopted by the Assessing Officer that it was a colourable devise was also not believed by the CIT (Appeals) as well as the by Tribunal. The CIT (Appeals) and Tribunal, on the contrary, found that the assessee never received any benefit or enjoyed the money that it has received as an advance and therefore, no benefit was derived out of the said transactions as admitted by the AO in the Assessment Order by observing that the assessee has reinvested the amount received as advance in the shares of the group companies of the said M/s. Marwar Hotels Private Limited which was later on sold at loss and such capital loss was never claimed as a set-off by the assessee.
Thus, we are of the opinion that the provisions of Section 41 (1) read with Section 28 (iv) of the Act would not be applicable. Decided in favour of assessee.
-
2024 (11) TMI 91
Deduction u/s. 80IA (4) - assessee worked as a contractor OR developer - AO disallowed claim as asessee was not eligible in view of the explanation inserted in the Act by Finance Act, 2009 with retrospective effect from 01.04.2000 and the assessee is not the owner of the property as a developer - ITAT held that the respondent-assessee is a developer withing the meaning of Section 80-IA and is eligible to claim the deduction under Sub-section (4) of the said provisions - HELD THAT:- In view of the above concurrent findings of fact arrived at by the CIT (Appeals) and the Tribunal, it cannot be said that the respondent-assessee is not a developer as it is found that the assessee was awarded a contract for full-fledged development of an Airport which is evidently not for any repairs or maintenance or upkeep or revamp of the existing Airport facilities but the assessee was entrusted with the work contract of developing a new infrastructure facility at Sardar Vallabhbhai Patel International Airport and the assesse was supposed to undertake necessary financial and entrepreneurial risk so as to qualify as a developer.
-
2024 (11) TMI 90
Reassessment proceedings - validity and jurisdiction of the notice issued u/s 148 - Borrowed satisfaction v/s independent application of mind - validity of reasons to believe - HELD THAT:- It is not in dispute that during the course of the assessment proceedings, there is no failure on the part of the assessee to disclose fully and truly all material facts inasmuch as pursuant to the notice issued u/s 142 (1) of the Act, the petitioner has filed a detailed reply on 08.12.2015 providing details with regard to purchase of immovable property and payment of advance to the Om Land Reality Pvt. Ltd.
AO after considering the details, has accepted the return income and passed the order u/s 143 (3) of the Act.
On perusal of the reasons recorded it clearly reflects wrong figure in relation to the immovable property transaction carried out by the petitioner on 07.03.2013. This fact is further fortified by the Assessing Officer in the communication dated 22.09.2021 as well as show-cause notice issued on the same date for proposed addition in the re-assessment proceedings.
It is therefore, apparent that the respondent-Assessing Officer has issued the impugned notice under section 148 of the Act only on the basis of the borrowed satisfaction without having any live nexus with the facts on record, more particularly, when the transactions in question are duly reflected in the books of accounts in form of audited balance-sheet as well as in reply to the notice 142 (1) of the Act during the course of the regular scrutiny assessment. We are therefore of the opinion that as there is no failure on the part of the petitioner to disclose truly and fully all material facts during the regular assessment and admittedly, the impugned notice is issued beyond the period of four years, as per proviso of 147 of the Act, the same would be without jurisdiction. The impugned notice is therefore quashed and set aside - Decided in favour of assessee.
-
2024 (11) TMI 89
Applicability of provisions of section 205 - non-deposit of Tax Deducted at Source (TDS) by the employer - refund of the petitioner was adjusted against the outstanding demand - HELD THAT:- This Court in case of Kartik Vijaysinh Sonavane 2021 (11) TMI 682 - GUJARAT HIGH COURT] as held case is no longer res integra and is covered by the decision of this very Court rendered in case of Devarsh Pravinbhai Patel.[2018 (9) TMI 1635 - GUJARAT HIGH COURT] where too, the petitioner was an employee of the Kingfisher Airlines and worked as a pilot. In his case also the TDS on the salary made to the petitioner had not been deposited. It is only when the department raised the tax demand with interest and initiated the actions of the recovery that this Court was approached - Relying on the decision of the Bombay High Court rendered in case of Assistant Commissioner of Income Tax and Others vs. Om Prakash Gattani [2000 (1) TMI 43 - GAUHATI HIGH COURT] this Court allowed the same stating Department cannot deny the benefit of tax deducted at source by the employer of the petitioner during the relevant financial years. Credit of such tax would be given to the petitioner for the respective years. If there has been any recovery or adjustment out of the refunds of the later years, the same shall be returned to the petitioner with statutory interest. - Decided in favour of assessee.
-
2024 (11) TMI 88
Demand raised in the intimation issued u/s 143 (1) - employer of the petitioners did not pay the Tax Deducted at Source from the salary of the petitioners - HELD THAT:- Employer of the petitioners deducted the Tax at Source from the salary income of the petitioners for two years but did not deposit the same with the Government. Thus, there is failure on the part of the employer to deposit tax deducted at source from the salary income income of the petitioners. Therefore, the respondent could not have raised any demand against the petitioners in view of the provisions of section 205 of the Act read with Instruction No. 275 dated 01.06.2015 and Office Memorandum dated 11.03.2016.
The impugned intimation issued under section 143 (1) of the Act and consequential demand raised upon the petitioners are liable to be quashed and set aside. The respondents are hereby directed to see that strict compliance of the provision of section 205 of the Act as well as Instruction issued by the CBDT are followed and necessary corrections be made in the software so as to see that no demand is raised in case of the deductee on account of failure to deposit the amount of Tax Deducted at Source by the deductor. The Instruction issued by the CBDT under section 119 of the Act are binding upon all the officers of the department including the computer center which is now almost doing the job of the Assessing Officer. The technology used cannot be made to cause inconvenience to the tax payers contrary to the provisions of the Act and the Instruction issued by the CBDT resulting into helplessness on the human agency who has created the software resulting into the slavery of the technology. This is a classic case where the technology has failed to consider the provisions of the Act and the binding instructions of the CBDT.
-
2024 (11) TMI 87
Reopening of assessment - Addition u/s 56(2)(vii) - receipt of immovable property as gifted to the petitioner who was the brother of the petitioner’s father - According to the assessing officer, a nephew was not a relative within a meaning of explanation (e) to proviso to Section 56(2)(vii) of the Act, the said gift would be taxable - Scope of definition of expression ‘relatives’ under explanation (e) to proviso to Section 56(2)(vii)
HELD THAT:- It is clear from the plain language of explanation (e) to proviso to Section 56(2)(vii) of the Act that a relative would also include a brother or sister of either of the parents of the individual. In this case, the donor is the brother of the petitioner’s father and therefore, is covered under the said clause. The fact that the word ‘nephew’ has not been mentioned cannot be a reason for proceeding on the basis that uncle or nephew are not relatives within the meaning of explanation (e) to proviso to Section 56(2)(vii) of the Act. The impugned order as well as the notice is set aside.
............
|
9911796707
