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1991 (11) TMI 107
Assessment Order, Income From Business, Penalty Proceedings ... ... ... ... ..... oceedings, the competent authority has to probe into and decide whether there has been any concealment of income. But, where there is a dispute as to whether such income allegedly concealed would be assessed in the hands of X or Y unless the determination is made by the Income-tax Officer, no charge of concealment can be made against the person in whose hands the income is added on protective basis. He is liable only if it is his income which has been concealed. In other words, a person upon whom a substantive assessment is made would only be liable for penalty provided the conditions precedent for the imposition of the penalty are satisfied. The Gauhati High Court has also held in the case of Metal Stores v. CIT 1990 89 CTR (Gauhati) 132 that protective penalties cannot be levied or sustained. We, therefore, hold that the assessee was not liable for any penalty under sections 271(1)(b), 273 or 271(1)(c) of the Income-tax Act, 1961. 9. In the result, the appeals are dismissed
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1991 (11) TMI 106
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... ... ..... assessee s counsel submits that the claim consisted of short payment from different parties and argued that the amount was deducted from the bills by paying authorities which are Government Departmentals and only the net amount was received by the assessee by account payee bank cheques. It is contended that there is no case at all of the Department to make addition of this amount. 11. Having heard both the parties and perusing the order of the ITO we find that the addition was properly deleted by the CIT(A) particularly when the assessee has filed complete details before the lower authorities as well as before us in the paper book and when such short deductions are made by the Government Department and the amounts are received by account payee cheques we find no justification for the addition made by the ITO. The learned CIT(A), therefore, rightly deleted the addition and we affirm it. 12. In the result, the Revenue s appeal is partly allowed subject to the direction above.
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1991 (11) TMI 105
Previous Year, Reasonable Cause ... ... ... ... ..... r 1983-84 and since the assessee has already received a sum of Rs. 16,75,000 from BCCL the balance sum of Rs. 1,47,990 should be assessed to tax for this assessment year as according to us, the same has accrued to the assessee though not received. The assessee thus gets a relief of Rs. 7,60,797 (Rs.9,08,787 - Rs.1,47,990). 10. It is represented by the assessee s counsel that till today the assessee has not received the sum of Rs.1,47,990 from CIL though more than seven years have passed and, therefore, it will not be justified to subject it to tax on Rs. 1,47,990 also. We, therefore, direct the ITO that if the assessee is unable to receive or recover the said amount of Rs. 1,47,990 from either BCCL or CIL and satisfies the ITO to this effect, the ITO should allow the assessee to write off or setoff the said sum of Rs. 1,47,990 against its profits in subsequent assessment years in accordance with law. 11. to 13. These paras are not reproduced here as they involve minor issues.
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1991 (11) TMI 104
Issues Involved:
1. Imposition of penalty u/s 271B for non-compliance with section 44AB.
2. Reasonable cause for delay in obtaining the audit report.
3. Burden of proof and standard of proof in penalty proceedings.
Summary:
1. Imposition of Penalty u/s 271B for Non-Compliance with Section 44AB:
The assessee, running a proprietary concern, had a turnover exceeding the threshold stipulated u/s 44AB, necessitating an audit report by 30-9-1985. The audit report was obtained on 22-3-1986, leading to non-compliance with section 44AB. The ITO issued a show-cause notice and subsequently imposed a penalty of Rs. 1 lakh u/s 271B, citing no plausible explanation for the delay.
2. Reasonable Cause for Delay in Obtaining the Audit Report:
The assessee argued that the delay was due to the non-finalisation of accounts for previous years (1982-83, 1983-84, and 1984-85), which were only completed in October 1985. The CIT (Appeals) deleted the penalty, stating that the ITO should have conducted further enquiry if he disbelieved the explanation provided by the assessee. The CIT (Appeals) concluded that the assessee had reasonable cause for the delay, thus no penalty was imposable.
3. Burden of Proof and Standard of Proof in Penalty Proceedings:
The revenue contended that the assessee failed to 'prove' reasonable cause for the delay. The assessee's counsel argued that penalty proceedings are not criminal in nature and the standard of proof required is not the same as in criminal cases. The Tribunal agreed, stating that the standard of proof in penalty proceedings is based on the preponderance of probabilities, not beyond reasonable doubt. The Tribunal held that the assessee had reasonable cause for the delay and was not liable for any penalty u/s 271B.
Conclusion:
The Tribunal dismissed the revenue's appeal, upholding the CIT (Appeals)'s decision to delete the penalty, emphasizing the need for reasonable opportunity of hearing and proper enquiry before imposing penalties.
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1991 (11) TMI 103
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... ... ..... registered valuer cannot be accepted as the same is based on land and building method, which cannot be applied in the case of let out properties. Therefore, considering the fact that building was let out at nominal considering that the building which existed then was the only building let out to the tenant during the financial year 1953-54, and the open green lawn appurtenant thereto was also under the occupation of the tenant, and also considering the locality of the Judges Court Road, which is a posh locality, and also considering the fact that building is surrounded by open land which had vast potentiality or future development, we fix the fair market value at Rs. 3,00,000, which we consider as reasonable. The ITO should work out the capital gains taking the fair market value of the property at Rs. 3,00,000, as on 1st Jan., 1954. 13. The last ground is not pressed and hence the same is accordingly dismissed. 14. In the result, the appeal is partly allowed as stated above.
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1991 (11) TMI 102
Assessing Officer, Assessment Order, Revised Returns
... ... ... ... ..... had itself offered the same as its income by filing revised returns. At the same time, it cannot be disputed that it is always open to the assessee to point out that the amount so offered cannot be treated as its concealed income even though it might have offered it for assessment in the circumstances explained by it in its letter dated 8-2-1988. 15. Having regard to the cumulative effect of the entirety of the facts and circumstances discussed above in the light of the decisions quoted above, we are of the considered view that the amounts offered by the assessee in its revised returns for these two years could not be held to be income in respect of which particulars had been concealed within the meaning of Explanation 1 to section 271(1)(c) of the Act. We, therefore, accept the contentions of the learned Chartered Accountant for the appellant and cancel the penalties levied in both the years which shall be refunded, if already paid. 16. In the result, the appeals are allowed
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1991 (11) TMI 101
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... ... ..... n countries so as to attract customers in India. The foreign tour, to our mind, appears to be a study tour and we for that reason shall uphold the order of the CIT(A). 20. The next cross-objection is against the disallowance of investment allowance of Rs. 47,61,129 under s. 32A of the Act. Parties to the dispute are agreed that an identical question had come up for adjudication before the Tribunal for the year 1982-83 and the matter was restored to the file of the CIT(A) for de novo adjudication. We can do no better in the circumstances than refer the matter back to the file of the AO to re-decide the issue after taking into consideration the submissions of the assessee in this regard. 21. The last cross-objection is against the imposition of interest under ss. 139, 215 and 216 of the Act. The prayer is for consequential relief and we direct the AO to allow the same. 22. In the result, the appeals by the Department and the cross-objection by the assessee are allowed in part.
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1991 (11) TMI 100
Annual Value, House Property ... ... ... ... ..... ec. 23(1)(b) are not satisfied. Nomenclature is not a decisive guide. We find that in the given circumstances, the amount received by the assessee as compensation endow all the characteristics of the word rent . Similarly it is not correct to say that property was not let . The word let as per the Concise Oxford Dictionary connotes Grant use of (rooms, land, etc.) for rent or hire . Admittedly the assessee has granted the user of the premises for the agreed amount payable on monthly basis. 14. Having regard to the facts and circumstances of the case and after carefully considering the case in its proper perspective, we are inclined to agree with the finding given by the learned CIT (Appeals) that the licence to use and occupy the premises with the fixtures and fittings is nothing but the letting out of the property. In this view of the matter we uphold the order of the learned Commissioner of Income-tax (Appeals). In the result, all the appeals by the assessee stand dismissed
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1991 (11) TMI 99
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... ... ..... company which was started and the assets of the firm were made over to that company. In this context, the High Court held, there was a transfer. Furthermore, the dispute in the case was not whether there was a transfer or no transfer, but whether the main purpose of the change over was to achieve reduction of liability to income-tax by claiming depreciation with reference to enhanced cost. In other words, it was not in dispute that there was a transfer and the controversy was in regard to the other aspect which is mentioned above. 12. The authorities of the Supreme Court to which we have made a detailed reference clearly hold the field to conclude that when the assets of the firm are taken over by one of the partners at the time of dissolution, there is no transfer. Consequently, Expln. 3 to s. 43(1) is inapplicable. The assessee is entitled to claim depreciation on the revaluated figure. We accordingly hold on the ground in favour of the assessee. 13.The appeal is allowed.
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1991 (11) TMI 98
A Firm, A Partner, Firm Consisting, Set Off ... ... ... ... ..... which was started and the assets of the firm were made over to that company. In this context, the High Court held, there was a transfer. Furthermore, the dispute in the case was not whether there was a transfer or no transfer, but whether the main purpose of the change over was to achieve reduction of liability to income-tax by claiming depreciation with reference to enhanced cost. In other words, it was not in dispute that there was a transfer and the controversy was in regard to the other aspect which is mentioned above. 12.The authorities of the Supreme Court to which we have made a detailed reference clearly hold the field to conclude that when the assets of the firm are taken over by one of the partners at the time of dissolution, there is no transfer. Consequently, Explanation 3 to section 43(1) is inapplicable. The assessee is entitled to claim depreciation on the revaluated figure. We accordingly hold on the ground in favour of the assessee. 13. The appeal is allowed.
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1991 (11) TMI 97
Assessment Order ... ... ... ... ..... ve. For such a conclusion, we derive full support from the ratio in the case of Kundan Lal Srikrishna Mathur wherein it was observed that after the issuance of the notice, the original assessment ceased to be enforced and the only order of assessment in respect of that year, which should be taken into consideration for all the purposes, was the order subsequently passed. According to this ratio, the original assessment order framed under section 143(1) of the Act became non-existent once notice under section 143(2)(b) of the Act had been issued and in pursuance thereto, the assessment had been framed. Similar is the view expressed by the Hon ble Allahabad High Court in the case of Tass Printing Inks (P.) Ltd. and others and in another case of Tass Printing Inks (P.) Ltd. and another. These three ratios clearly support the view taken by us in the present case. In the light of the preceding paragraphs, we confirm the order under challenge. In the result, the appeal is dismissed
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1991 (11) TMI 96
Reference Application ... ... ... ... ..... is the obligation of the ITO under the Act to extend the benefit of registration and allow the firm to enjoy the benefits provided by the Act. 15. In the light of our preceding discussions, it is clear that the reasons of the ld. ITO are untenable and the conditions required in terms of ratio in the case of Ratanchand Darbarilal have been satisfied. Our conclusion is that no interference is warranted. We do the same. 16. In the result, the appeal is dismissed. 17. The cross objection No. 74/All./1989 raised by the assessee is required to be rejected on the simple ground that the same is not relatable to the year under challenge. 18. Before parting with this file, we want to observe that the appellant- revenue is seen to have filed a copy of first appellate order in the quantum matter. whereas such copy should have been of the first appellate order in respect of action under section 185(1)(b) of the Act. 19. In the result, the appeal and the cross objection both are dismissed.
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1991 (11) TMI 95
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... ... ..... tively for five years. This part of withdrawal was not according to the settled principle of law and rather the things will remain in a conflicting state. In this regard we think that the proposition of law as has been propounded in the case of Saurashtra Cement and Chemical Industries Ltd. is equally applicable though the same relates to s. 80J of the IT Act. But the intentions of granting relief in both the sections are based on same ground of laws and reasoning So regard being had to the entire gamut of the case, we are of the view that the order of the learned D.C.(A) on this point is in order and it does not call for any interference. So is with the second ground because the learned D.C.(A) at para 7 of his order has given a clear-cut finding that the reopening of the assessments under s. 17(1)(b) of the WT Act was baseless as before the reopening of the alleged escaped assessment the WTO had no basis or information to do so. 10. In the result the appeals are dismissed.
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1991 (11) TMI 94
Accounting Year, Bad Debt, Revised Return ... ... ... ... ..... safeguard the interest of the revenue as and when the assessee recovers any amount out of such irrecoverable debt. 8.11 We, therefore, direct the ITO to allow deduction in respect of the said amount of bad debt. 9. The only other ground pressed before us relates to levy of interest under sections 139(8) and 217. It was the common contention of the learned representatives that this ground will have to be restored back to the CIT(A) as he has not given any finding in relation to this ground. This matter is, therefore, restored back to the learned CIT(A) with the direction to decide the same afresh after providing reasonable opportunity to both the parties. 10. As mentioned earlier, the various other legal grounds taken by the assessee were not pressed and they are, therefore, dismissed as not pressed. 11. In the result ITA No. 1157/Ahd/88 is dismissed as not pressed and ITA No. 1594/Ahd/90 is partly allowed http //www.taxmanagementindia.com/visitor/detail case laws.asp?ID 56106
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1991 (11) TMI 93
Accounting Year, Bad Debt, Revised Return ... ... ... ... ..... f realisation in view of section 41(1) of the Act. This will adequately safeguard the interest of the revenue as and when the assessee recovers any amount out of such irrecoverable debt. 8.11 We, therefore, direct the ITO to allow deduction in respect of the said amount of bad debt. 9. The only other ground pressed before us relates to levy of interest under sections 139(8) and 217. It was the common contention of the learned representatives that this ground will have to be restored back to the CIT(A) as he has not given any finding in relation to this ground. This matter is, therefore, restored back to the learned CIT(A) with the direction to decide the same afresh after providing reasonable opportunity to both the parties. 10. As mentioned earlier, the various other legal grounds taken by the assessee were not pressed and they are, therefore, dismissed as not pressed. 11. In the result ITA No. 1157/Ahd/88 is dismissed as not pressed and ITA No. 1594/Ahd/90 is partly allowed
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1991 (11) TMI 92
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... ... ..... o erred in holding that after giving appeal effect there will not be any assessable income in this case and charging of interest under s. 139(8) and 215 will become redundant automatically. The learned Senior Departmental Representative contended that the levy of interest under the aforesaid provisions is consequential. Instead of giving the finding on merits, the CIT(A) ought to have only directed the assessing authority to grant consequential relief. 7.1 The learned counsel for the assessee contended that the after the grant of deduction of depreciation, initial depreciation and investment allowance the provisions of ss. 139(8) and 215 would no longer be applicable in the case of the assessee. 7.2 In our view the CIT(A) has rightly observed that after granting depreciation, initial depreciation and investment allowance no interest would remain chargeable under ss. 139(8) and 215. The ITO may, therefore, grant consequential relief. 8. In the result, the appeal is dismissed.
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1991 (11) TMI 91
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... ... ..... ire Jute Co. Ltd. vs. CIT (1980) 17 CTR (SC) 13 (1980) 124 ITR 1 (SC). The learned Sr. DR supported the orders of the ITO and the CIT(A). 2.3. In our view the contention of the assessee deserves to be accepted. The expenditure incurred for improvisation in the process and technology with a view to carry out the production activities smoothly, efficiently and profitability is a business revenue expenditure. Such expenses incurred for better conduct and improvement of the existing business without resulting in acquisition of any new capital asset is allowable as a revenue expenditure. Such a view is clearly fortified by the judgment of Hon ble Supreme Court in the case of Empire Jute Co. Ltd. vs. CIT (1980) 17 CTR (SC) 13 (1980) 124 ITR 1 (SC) and Alembic Chemical Works Co. Ltd. vs. CIT (1989) 77 CTR (SC) 1 (1989) 177 ITR 377 (SC). The ITO is directed to allow deduction in respect of such expenditure. 3. In the result, the appeal is treated as allowed for statistical purposes.
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1991 (11) TMI 90
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... ... ..... g both religious and charitable objects, the aforementioned section will have no applicability as that deals only with a trust set up for charitable purpose. I do not think it necessary to go into that question at this stage and have already reached the conclusion in assessee s favour for the reason given above. 8. Shri Thakore also relied upon a decision of Ahmedabad Bench B of March 1981 in the case of Catholic Church, Vyara, ITA Nos. 385 to 387 (Ahd)/1980. In that decision too, it has been held that s. 13(1)(b) on which the ITO had relied had no application and the trust was entitled to exemption u/s. 11(1) (a). It was pointed out that the objects of that trust were similar in nature to those of the assessee trust. The view taken by me here is in accordance with the view taken by the Division Bench in the case of Catholic Church, Vyara. 9. In the result, I uphold the decision of the AAC for all the four assessment years under appeal and dismiss the appeals of the revenue.
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1991 (11) TMI 89
Previous Year ... ... ... ... ..... also erred in holding that after giving appeal effect there will not be any assessable income in this case and charging of interest under sections 139(8) and 215 will become redundant automatically. The learned Sr. D.R. contended that the levy of interest under the aforesaid provisions is consequential. Instead of giving the finding on merits, the CIT(Appeals) ought to have only directed the assessing authority to grant consequential relief. 7.1 The learned counsel for the assessee contended that after the grant of deduction of depreciation, initial depreciation and investment allowance the provisions of sections 139(8) and 215 would no longer be applicable in the case of the assessee. 7.2 In our view the CIT(Appeals) has rightly observed that after granting depreciation, initial depreciation and investment allowance no interest would remain chargeable under sections 139(8) and 215. The ITO may, therefore, grant consequential relief. 8. In the result, the appeal is dismissed
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1991 (11) TMI 88
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... ... ..... to the provisions of law. In the final analysis we uphold the decision of the AAC. 8. However, before we part with this appeal we may mention that in the statement of facts the assessee has in para 3 mentioned that a second extension application was filed on 29th Sept., 1983 requesting for time upto 30th Nov., 1983. It is stated that this second application has not been considered either by the ITO or by the AAC in quantifying the penalty. No submission was made by the learned counsel for the assessee in respect of the aforesaid extension application but in the interest of justice we would ask the ITO to look into the same after giving a reasonable opportunity to the assessee to place on record relevant proof of having filed the said extension application. In case the same has not been rejected by the ITO at any stage then the penalty would have to be recomputed by reducing the delay by a further period of two months. 9. The appeal is partly allowed for statistical purposes.
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