|
Advanced Search Options
Case Laws
Showing 261 to 280 of 420205 Records
-
2024 (11) TMI 1218
Conversion of 100% EOU into DTA - denial of CENVAT Credit - non-registration of debonded EOU - denial of credit u/r 10 of CENVAT Credit Rules, 2004 - denial of transfer of PLA balance of debonded EOU to CENVAT credit of DTA.
Denial of CENVAT credit of Rs. 10,77,05,805/- on allegation of non-registration of debonded EOU - HELD THAT:- The appellant provided all possible disclosures in their application. Pursuant to this letter, the department issued amended central excise registration certificate on 11-03-2013. In this background, when the appellant made all disclosures in their application and amended central excise registration was issued, we do not find any merit in confirming the demand on allegation of non-registration - there are force in appellant’s arguments that the department is taking contrary stand as at one hand it is denying credit on the ground that DTA excise registration does not bear address of debonded EOU but at the same time has accepted payment of central excise duty on the clearance made from the premises of EOU.
When the appellant provided re-defined boundaries for amended registration in their application and basis the said application revised excise registration was issued, merely non mentioning of the specific plot number cannot lead to denial of credit - there are force in appellant’s arguments that it is a settled law that registration of premises is not a pre-requisite for availing credit.
It was held in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [2011 (9) TMI 450 - KARNATAKA HIGH COURT] that 'In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law.'
Also, the appellant’s submission that substantial benefit of credit cannot be denied for procedural lapse is a settled preposition of law as has been held by various decisions including the Bombay High Court decision in COMMISSIONER OF CENTRAL EXCISE, NAGPUR, VERSUS M/S. LARSEN & TOUBRO LTD., THE CUSTOM EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, MUMBAI [2022 (1) TMI 665 - BOMBAY HIGH COURT] - thus, the demand do not sustain.
Denial of credit of Rs. 4,21,16,159/-, under Rule 10 of CENVAT Credit Rules, 2004 - HELD THAT:- On a bare perusal of provision of Rule 10 of CCR it can be seen that the said provision can be invoked in specific circumstances like shifting of manufacturing unit at another site of transfer of factory due to change of ownership, sale, merger, amalgamation, lease or transfer of the factory to a joint venture. Herein, the appellant has merged adjacent debonded EOU into their DTA unit for which clearly provision of Rule 10 of CCR cannot be invoked and therefore, no demand can sustain under Rule 10 of CCR.
The appellant converted its EOU unit into DTA and during the said conversion transferred the balance CENVAT credit of EOU into DTA. There are force in appellant’s arguments that during conversion of unit from DTA to EOU or from EOU to DTA there is no bar on transfer of CENVAT credit.
The issue at hand pertains to conversion of EOU to DTA, it is observed that there is no provisions under the law which bars debonded EOU unit to avail credit in its DTA unit post conversion - the demand of Rs. 4,21,16,159/-, cannot sustain.
Denial of transfer of PLA balance of Rs. 7,89,895/- of debonded EOU to CENVAT credit of DTA - HELD THAT:- The PLA is nothing, but appellant’s own money lying in balance which can be utilized at a future event for payment of excise duty. Herein, transiting of credit into DTA unit, on merger of EOU into the said DTA, also serves the same purpose. Also, since the Leaned Commissioner admits that the appellant is entitled for refund of the same, transiting the credit in DTA unit has no revenue impact. As has been held in JAY SHREE TEA & INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., KOLKATA [2005 (8) TMI 189 - CESTAT, KOLKATA] pending utilization of the PLA amount towards excise duty, the department has no claim over such amount. As such, demand on this issue is not sustainable.
Thus, no demand can sustain. Accordingly, the impugned order is set aside and the appeal allowed with consequential reliefs, if any.
-
2024 (11) TMI 1217
Revision u/s 263 - failure to tax unaccounted income disclosed during a survey u/s 115BBE - as per CIT AO had not made any inquiry nor considered the record of survey before accepting the surrender as pertaining to the professional receipt, as the income surrendered ought to have been taxed at the rate of 60% plus surcharge at the rate of 25% of such tax u/s 115BBE - ITAT allowed assessee appeal - HELD THAT:- Tribunal after considering the settled legal position has arrived at the findings that the PCIT has ignored the facts of the case on record as well as the legal proposition to the effect that the finding of non-inquiry vis-a-vis the documents, statements recorded during the course of survey, is not based on any hard facts but the facts on record clearly reveals that the AO had conducted due inquiry on the issue of disclosure made by the respondent assessee and considering the statement of the assessee during the survey making voluntary surrender of professional unaccounted receipts, the same was taxed as such as business income, is in accordance with law.
Tribunal has therefore rightly held that only because no inquiry was conducted by the Assessing Officer on record of the survey before him, cannot be the basis for assumption of jurisdiction u/s 263 more particularly, when it is not pointed out as to how and what basis such finding was arrived at by the AO and non examination of the records cannot be the basis for coming to the conclusion that the assessment order is erroneous and pre-judicial to the interest of revenue.
Principal CIT could not have assumed the jurisdiction on mere change of opinion on his part, when the Assessing Officer while during the course of regular assessment has made inquiry regarding the issue which is the subject matter of the revision.
Principal CIT would have arrived at a valid finding of error on the basis of his own examination of record including the documents and statement recorded of the assessee during the survey action undertaken u/s 133A but there is nothing on record to point out that how the documents pertaining to survey could not have lead to a reasonable belief as entertained by the Assessing Officer that the income surrender pertained to the professional receipt which is one of the plausible view on the matter. Decided in favour of assessee.
-
2024 (11) TMI 1216
Deemed divided u/s 2(22)(e) - arriving at the accumulated profits u/s 2(22)(e) whether deduction of depreciation as provided under the Income-tax Act is necessary or not for taxing any loan borrowed from the company, as deemed dividend? - HELD THAT:- In Navnit Lal C Javeri [1970 (3) TMI 33 - BOMBAY HIGH COURT] dealt with the issue as to what is the correct method for determination of accumulated profits u/s 2(6A)(e) and if there are any accumulated profits so determinable, what is the correct amount thereof and held that for the purpose of calculating profits within the meaning of the phrase “accumulated profits” under section 2(6A)(e), an allowance of depreciation should be made by way of a deduction at the rates provided for by the Income-tax Act itself.
Also in JAMNADAS KHIMJI KOTHARI. [1972 (10) TMI 24 - BOMBAY HIGH COURT] held that phrase “accumulated profits” does not mean profits as disclosed by the company’s balance-sheet. The profits disclosed would be subject to adjustment and the depreciation as granted in accordance with the rates prescribed by the Income-tax Act would have to be deducted for ascertaining the accumulated profits - Decided in favour of assessee.
-
2024 (11) TMI 1215
Pendency of the Appeals pending before the CIT(Appeals) - CIT (Appeals) not disposing the pending Appeals on one hand and the recovery Proceedings are initiated by the respondent-Income Tax Department for the outstanding demand - HELD THAT:- As respondent Nos.3 to 5 instead of addressing the issue of pendency of the Appeals pending before the CIT(Appeals) has tried to justify the proceedings undertaken by the CIT(Appeals) for the disposal.
We are at pain to note that in spite of giving specific directions in paragraph No.9 of the order 2024 (10) TMI 1616 - GUJARAT HIGH COURT] the respondent Nos.3 to 5 have ignored the same and repeated what is stated in the earlier affidavit with an addition only reference to annual Central Action Plan 2024-25 and Vivad se Vishwash Scheme, 2024 for issue of pendency of more than 5,80,000 Appeals before the CIT (Appeals).
If the respondents are not interested in resolution of the issue of pendency of the Appeals the manner in which it ought to have been resolved by classifying the Appeals as per the issues concerning the recurring issues, covered issues, etc., we are of the opinion that no recovery should be made from the assessees during the pendency of the Appeals. Therefore, in all these petitions, there shall be no recovery of any outstanding dues from the petitioners whose Appeals are pending during pendency of these petitions.
-
2024 (11) TMI 1214
Treating Exempt dividend income as per the provisions of section 10(35) as taxable thereby increasing the total income - claim was denied by processing the return u/s 143(1) and assessee has moved an application for rectification u/s 154 of the Act which is pending disposal before the CPC, Bengaluru - HELD THAT:- On such concession, we are of the considered view that the said application of the assessee should be disposed off at the earliest and till the disposal of the rectification application, the AO should not take any adverse action against the assessee. Ground No. 1 is accordingly disposed off.
TP adjustment - international transaction of payment for intra-group support services availed by the Assessee from its AEs - HELD THAT:- As assessee, pointed out that the quarrel has been settled through an unilateral Advance Pricing Agreement (APA) made on 27/03/2024 between the CBDT and the assessee and one of the terms of the agreement is that the agreement shall apply to consecutive five (5) years commencing from 2015-16 to 2019-20, meaning thereby for AYs 2016-17 to 2020-21, which includes the assessment year under consideration. The assessee has also filed modified return of income on 25/06/2024. Thus AO is directed to re-decide the issue afresh considering the APA (supra) and the modified return of income (supra). Accordingly, Ground No. 2 is allowed for statistical purposes.
Deduction u/s 80G - Corporate Social Responsibility (CR) expenditure - HELD THAT:- As decided in assessee own case in AY 2018-19 DRP concluded that even though deduction for CSR Expenses was not allowable under Section 37 of the Act (in view of the Explanation 2 to Section 37 of the Act inserted by the Finance Act, 2014, with effect from 01.04.2015), there was no bar for allowance of the same under Assessment Year: 2018-19 Section 80G of the Act (except for the donations made to the Swach Bharat Kosh and the Clean Ganga Fund), provided all the other conditions of Sec. 80G are fulfilled. Therefore, the DRP issued specific direction to allow deduction u/s 80G of the Act after verifying whether the other conditions specified under Section 80G were fulfilled. As per mandate of Section 144C(13) of the Act, upon receipt of directions issued by DRP the Assessing Officer was required to complete the assessment in conformity with the directions issued by the DRP. The issue is remanded back to the file of Assessing Officer with the directions to pass the Final Assessment Order in conformity with the directions issued by the DRP.
Levy of interest u/s 234A - Challenge levy on the ground that there was no delay in filing the return of income and the return of income has been filed before the extended due date by CBDT Notification No. 93/2020, F. NO. 370142/35/2020 TPL dated 31/12/2020 - HELD THAT:- AO is directed to verify whether the Board has extended the due date of filing the return of income and if so, verify whether the assessee has filed the return of income on or before the extended date and if found correct, not to levy interest u/s 234A of the Act. This Ground is also allowed for statistical purposes.
Levy of interest u/s 234B of the Act which will be levied by the AO after giving appeal effect to our order as per the provisions of the law a
Non-granting of the credit for dividend distribution tax (DDT) - AO is directed to verify the claim of the DDT from the challan to be furnished by the assessee and if found correct, allow the credit. These Grounds are also allowed for statistical purposes.
-
2024 (11) TMI 1213
Unexplained income of cash deposits in savings bank account - sale proceeds of Agricultural land assessed as long term capital gain - assessee submitted that the assessee is in possession of substantial agricultural land along with his brother and involved in production of export quality roses in poly house. For this purpose, the assessee has also availed bank loan.
HELD THAT:- We find that in support of agricultural income the assessee has relied on statistical data report prepared by Professor of Economics Agricultural College, Pune but the said report cannot be sacrosanct for the purposes of proof of agricultural income and the assessee needs to substantiate the same before the AO with proper and supporting evidences.
At the same time we find that the assessment order was passed ex-parte i.e. in the absence of assessee and first appeal order was passed after considering the remand report sent by the Assessing Officer.
Under these circumstances we find that the assessee could not support his case properly before the AO, thus we deem it appropriate to set-aside the order passed by Ld. CIT(A) and remand the matter back to the file of the Assessing Officer with direction to pass assessment order afresh - The grounds raised in this appeal are accordingly allowed for statistical purposes.
-
2024 (11) TMI 1212
Denial of exemption u/s. 11 - failure on the part of the assessee to file the Audit Report of the accounts of the Trust (Form 10B) within due time - assessee belatedly filed the same within ‘32’ days - Rejection of rectification-application as dismissed by the Ld.CIT(A).
HELD THAT:- We note that the CBDT Circular F. No.173/193/2019 ITAI, dated 23-4-2019 permits the assessee-Trust to file an application before the CIT for condonation of delay up to ‘365’ days if the assessee is able to show reasonable cause for not filing the Audit Report within the stipulated time.
CIT has been delegated the powers by CBDT to condone the delay. Be that as it may, we note that in this case, assessee Trust has filed return along with Audit Report (‘32’ days delay) before the CPC and it had processed the return of the assessee. Therefore, taking into consideration sec.12A(1)(ba) r.w.s.139(4A), we are of the view that the CPC ought not to have denied exemption u/s. 11 of the Act without giving proper opportunity as stipulated by first proviso to sec.143(1) of the Act.
Since, there is violation of natural justice and the assessee has complied with stipulation of filing Audit Report which was very well before the CPC, the impugned action of the CPC can’t be legally sustained. Therefore, we set aside the impugned order of the Ld.CIT(A), and direct the assessee to file application for condoning delay in filing of Audit Report as per Circular No.2/2020 dated 03.01.2020.
As the assessee to prefer an application as stated in Para No.5 (supra) and thereafter, the CPC to process the return of income afresh and pass orders after giving opportunity to the assessee if any adjustments are proposed to be made in accordance to law.
Appeal filed by the assessee is allowed for statistical purposes.
-
2024 (11) TMI 1211
Grant of short credit of TDS - as per DR no income has been offered to tax corresponding to the amount of TDS being claimed by the assessee, the credit for TDS cannot be given to the assessee in the year under consideration - HELD THAT:- Considering circulars of the CBDT relating to granting of refund of TDS, we are of the view that the assessee is entitled to claim refund on TDS deducted from the advance given to it by HPCL.
AO may however, verify from the system that no refund of the TDS in question has been claimed by the HPCL by way of filing of a revised TDS return. Subject to the above, the AO is directed to allow credit of brought-forward TDS as claimed by the assessee. Appeal of the assessee is allowed.
-
2024 (11) TMI 1210
Violation of principles of natural justice - opportunity of personal hearing not granted to petitioner - HELD THAT:- Applying the ratio as laid down by the coordinate Bench of this Court in the case of Mahaveer Trading Company vs. Deputy Commissioner State Tax and another [2024 (3) TMI 334 - ALLAHABAD HIGH COURT], it is opined that opportunity of personal hearing should have been granted to the petitioner under Section 75(4) of the Uttar Pradesh Goods and Services Tax Act, 2017 before passing any adverse order against the petitioner.
The impugned order dated November 29, 2022 passed by respondent no.2/Assistant Commissioner, State Tax, Sector-2, Shikohabad is quashed and set-aside with a direction given to the officer concerned to grant the petitioner another opportunity of filing a fresh reply and thereafter fix a date of hearing and pass a reasoned order - Petition disposed off.
-
2024 (11) TMI 1209
Condonation of delay in filing appeals against orders under CGST/SGST Acts - Whether the court can exercise jurisdiction under Art. 226 to permit the filing of appeals beyond the statutory time limit? - HELD THAT:- The petitioner has not made out any ground for grant of relief in this writ petition. Admittedly, the petitioner filed appeals against Ext.P.1 series of orders only in the month of February 2024 i.e., four years after the date on which the orders against which the appeal was sought to be filed had been issued. This Court cannot, normally, in the exercise of jurisdiction under Art. 226 of the Constitution of India extend the time limit for filing an appeal under Section 107 of the CGST/SGST Acts.
This is clear from the law laid down in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT]. The issue was considered in the context of Section 35 of the Foreign Exchange Management Act, 1999 in KETAN V. PAREKH VERSUS SPECIAL DIRECTOR, DIRECTORATE OF ENFORCEMENT AND ANOTHER. [2011 (11) TMI 62 - SUPREME COURT] - The judgment in Ketan V. Parekh is also authority for the proposition that though Section 5 of the Limitation Act, 1963 may not apply, the benefit of Section 14 of that Act can be extended in appropriate cases. It is only when the Court finds certain extraordinary circumstances that prevented the petitioner from filing an appeal within time, the Court will exercise such jurisdiction (in rare cases) and direct that the petitioner should be permitted to contest an appeal filed beyond the statutory time limit, on merits - there are no extraordinary circumstances in this case to grant similar relief to the petitioner.
Though Article 226 of the Constitution of India does not fix any period of limitation for the filing of a writ petition, it is settled law that a writ petition can be dismissed on the ground of inordinate delay in filing the writ petition. As already observed the orders issued by the adjudicating authority were issued in the month of February 2020. This Writ Petition has been filed only in the year 2024. That is another reason to decline relief. The petitioner has failed to approach this Court within a reasonable time.
The contention of the petitioner that he was sick and advised bed rest due to fatty liver disease has to be taken with a pinch of suspicion - the writ petition fails, and it is accordingly dismissed.
-
2024 (11) TMI 1208
Seeking to quash the Impugned Ex-Parte Order passed under Section 73(9) of the CGST/ UPGST Act, 2017 as well as the Impugned Summary of the Order - extension of period of limitation for determination of tax under Section 73(10) of the CGST/ UPGST Act, 2017 without having any exigency provided under Explanation to Section 168A of CGST/UPGST Act, 2017 - HELD THAT:- Petitioner placed reliance upon the judgements of the Supreme Court in Ghanshyam Mishra and Sons (P.) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd. [2021 (4) TMI 613 - SUPREME COURT]; Pr. CIT v. Monnet Ispat & Energy Ltd. [2018 (8) TMI 1775 - SC ORDER]; judgement of Bombay High Court in Murli Industries Limited v. Astt. CIT [2021 (12) TMI 1182 - BOMBAY HIGH COURT]; and the order of Delhi High Court in ARENA SUPERSTRUCTURES PRIVATE LIMITED VERSUS ASSISTANT COMMISSIONER OF INCOME TAX & ANR. [2024 (7) TMI 1558 - DELHI HIGH COURT] to buttress his argument that once the resolution plan has been sanctioned by the National Company Law Tribunal, other dues that are not part of said plan would extinguish. Furthermore, new liability cannot be created by the tax authorities for prior periods on a company, that is the 'successful resolution applicant'.
In light of the above judgements and the ratio laid down by the Supreme Court in Ghanshyam Mishra and Sons (P.) Ltd., the order impugned dated April 30, 2024 is stayed during the pendency of this writ petition.
List this matter on January 16, 2024.
-
2024 (11) TMI 1207
Challenge to remarks/order annexed to the Respondents’ reply - confusion regarding cancellation of GST registration order - violation of principles of natural justice - HELD THAT:- There is no evidence of any proper order of cancellation or in any event, communication of this order to the Petitioner. Since the portal refers to remarks, it is possible that the Petitioner was confused about whether this would constitute an order or in any event, a speaking order.
The show cause notice dated 8 June 2023 required the Petitioner to file a reply and attend the personal hearing on 15 June 2023. The Petitioner did neither. It was only in November that the Petitioner filed a reply in physical format, adding that it could not have been uploaded to the Respondent’s portal earlier - The impugned remarks take no cognisance of the Petitioner’s reply filed in the physical format. Since the impugned remarks were uploaded only on 10 January 2024, cognisance should have been taken of the Petitioner’s reply. Accordingly, there is a failure of natural justice.
The costs must be paid to the Tata Memorial Hospital within four weeks from today, and proof of payment/receipt must be produced before the second Respondent within four weeks. Upon receipt of such proof, the second Respondent must fix a date for personal hearing of the Petitioner/its representative and dispose of the show cause notice dated 8 June 2023 by passing a reasoned order and communicating it to the Petitioner. The notice regards personal hearing should be served on the Petitioner by e-mail and not by simply indicating it on the portal - If the costs are not paid within four weeks from today, then this Petition will be deemed to have been dismissed with Rs. 10,000/- again payable to Tata Memorial Hospital.
-
2024 (11) TMI 1206
Validity of exemption notification dated 02.03.2023 - imposition of condition for the purpose of getting exemption that the vehicle in question must have been purchased in the State of Uttar Pradesh - Section-3 of the U.P. Motor Vehicle Taxation Act, 1997 - HELD THAT:- Perusal of the provisions of section 3, would reveal that the State Government, subject to such conditions and for such period, as may be specified, may exempt either wholly or partly any motor vehicle or class of motor vehicles from the payment of any tax under the Act. The Section, does not restrict the power of the State to indicate the conditions for grant of exemption. The notification dated 02.03.2023, inter alia, provides for 100% exemption of tax qua the vehicles purchased and registered in Uttar Pradesh.
The very fact that the aforesaid Section does not restrict the powers of the State in imposing condition, the plea raised seeking to question the condition imposed regarding purchase of vehicle cannot be countenanced. The submissions made that as the tax imposed is on plying of the vehicle, no condition on the basis of place of the purchase of the vehicle can be imposed, apparently also has no basis.
There is substance in the submissions of learned counsel for the respondents that on purchase of vehicle within the State, the State gets revenue through its share of G.S.T. and in case the vehicle is purchased from outside the State, even that part of the revenue is lost and therefore, instead of making it open-ended exemption, the State is well within its power to impose the condition of purchase of vehicle within the State, which condition cannot be said to be unreasonable.
Thus, no case for interference is made out in the petition, the same is, therefore, dismissed.
-
2024 (11) TMI 1205
Validity of Reopening of assessment u/s 147 - addition invoking Section 50C - as decided by HC [2023 (10) TMI 1454 - BOMBAY HIGH COURT] this is not a fit case to exercise our discretionary jurisdiction under Article 226 of the Constitution of India. Petitioner may raise all grounds which Petitioner has before the AO in reply to the notice u/s 148 - The officer shall consider the objections and points raised by Petitioner and pass such order as he deems fit in accordance with law dealing with all submissions of Petitioner.
HELD THAT:- We continue the stay of further proceedings pursuant to the notice under Section 148.
The respondents have issued the notice despite the fact that the relationship between the vendor and vendee is that of mother and son. In these circumstances, reference to the circle rate, which may be relevant for the purpose of execution of a sale deed/gift deed, as per the petitioner has no relevance to invoke Section 50C of the Act.
Counter affidavit/reply within 3 weeks. Rejoinder within 3 weeks after service of the reply/counter affidavit.
-
2024 (11) TMI 1204
Validity of reassessment proceedings - notice was issued beyond the period of limitation as prescribed in first proviso to Section 149(1) - HELD THAT:- As decided in RAJEEV BANSAL [2024 (10) TMI 264 - SUPREME COURT (LB)] a notice could be issued under Section 148 of the new regime for assessment year 2021-2022 and before only if the time limit for issuance of such notice continued to exist under Section 149(1)(b) of the old regime.
The first proviso to Section 149(1)(b) requires the determination of whether the time limit prescribed under Section 149(1)(b) of the old regime continues to exist for the assessment year 2021-2022 and before. Resultantly, a notice under Section 148 of the new regime cannot be issued if the period of six years from the end of the relevant assessment year has expired at the time of issuance of the notice. This also ensures that the new time limit of ten years prescribed under Section 149(1)(b) of the new regime applies prospectively. For example, for the assessment year 2012-2013, the ten year period would have expired on 31 March 2023, while the six year period expired on 31 March 2019. Without the proviso to Section 149(1)(b) of the new regime, the Revenue could have had the power to reopen assessments for the year 2012-2013 if the escaped assessment amounted to Rupees fifty lakhs or more. The proviso limits the retrospective operation of Section 149(1)(b) to protect the interests of the assesses.
In view of the above, the present petition is allowed. The impugned order dated 01.05.2024 as well as the notice issued under Section 148 in respect of the AY 2017-18 are set aside.
-
2024 (11) TMI 1203
Validity reassessment proceedings beyond period of limitation - when a notice can be considered as issued ? - delay is of only about two minutes in issuance of the impugned notice u/s 148A(b) - Revenue’s contention that although the impugned notice bears the date of 01.04.2023, however, the same should be construed as having been issued on 31.03.2023. This contention is premised on the basis that the process for issuing the impugned notice had begun in the late hours of 31.03.2023 and the final act of affixing the digital signature – which is system generated process – was completed on 12:02 AM on 01.04.2023
HELD THAT:- In the present case the impugned notice was digitally signed on 01.04.2023. Thus, the process of digitally generating the same on the system was completed on 01.04.2023. Plainly, the impugned notice could not have been issued prior to the same being signed. The fact that the steps to generate the impugned notice commenced on 31.03.2023 cannot be a ground to hold that the impugned notice was issued on 31.03.2023. The date of the said notice is correctly reflected as 01.04.2023. In addition, it is also pointed out that the DIN & Notice Number mentioned in the impugned notice also indicates that the impugned notice was issued in the financial year 2023-24.
Thus, we find merit in the contention that the re- assessment proceedings could not have been initiated beyond the period of three years from the end of the relevant assessment year (AY 2019-20) as the income in respect of which the AO has information to suggest that it has escaped assessment, is below the threshold limit of ₹50,00,000/-. The petition is accordingly allowed in assessee's favour.
-
2024 (11) TMI 1202
Maintainability of appeal on low tax effect - addition u/s 68 - HELD THAT:- As could be seen from paragraph 9 of the Memorandum of Appeal, the tax effect involved in this case is Rs. 1,16,15,310/-. If that be so, the revenue cannot pursue the matter further on account of the circular issued by the Central Board of Direct Tax being Circular No.9 of 2024.
Accordingly, the appeal stands disposed of on the ground of low tax effect and the substantial questions of law suggested by the revenue are left open.
-
2024 (11) TMI 1201
Notice issued u/s 142(1) by non jurisdictional officer - As submitted notice issued by an officer, who is not a ‘prescribed income-tax authority’- HELD THAT:- A plain reading of Section 143(2) clearly indicates that either of the two authorities – either the ‘Assessing Officer’ or ‘the prescribed income-tax authority’ – can issue a notice under Section 143(2) of the Act. The expression ‘as the case may be’ also indicates the same.
In the present case, the CBDT had issued a notification dated 12.05.2022 and 28.05.2022, in exercise of powers under Rule 12E of the Rules, and had authorised the Assistant Commissioner of Income Tax/ Deputy Commissioner of Income Tax (International Taxation), Circle 1(1)(1) Delhi to act as the ‘prescribed income-tax authority’ for the purpose of issuance of notice under Section 143(2) of the Act.
The contention that other than the Assessing Officer, only the authorised Income Tax Officers of the National Faceless Assessment Centre (NaFAC) can issue a notice under Section 143(2) of the Act as the same would be in furtherance of automation of such process, is also unmerited. This proposition is not supported by the plain language of Section 143(2) of the Act or Rule 12E of the Rules. Rule 12E of the Rules does not confine the power of the CBDT to authorise only the Income Tax Officers of the NaFAC as the prescribed authority for the purposes of Section 142(1) of the Act.
The contention that the prescribed income tax authority can only serve a notice under Section 143(2) of the Act but cannot issue it, is insubstantial.
We are unable to accept that the AO did not have the jurisdiction to issue the impugned notice dated 15.07.2024 under Section 142(1) of the Act or that the same is beyond the period of limitation.
Once it is accepted that the AO has the jurisdiction to issue a notice under Section 143(2) of the Act – which is also the contention of the petitioner in this case – the AO cannot be faulted for proceeding to complete the assessment.
-
2024 (11) TMI 1200
Levy of penalty u/s 271AAC(1) - order passed u/s 144 AO concluded the assessment on best judgment on the basis of document/information available on record and made an addition of Rs. 20 lakh to the total income of the assessee at a special rate u/s 115BBE - HELD THAT:- From the perusal of the aforesaid order passed pursuant to the directions issued by the Tribunal, we find that the AO has accepted the total income declared by the assessee in its return of income and no addition has been made against the assessee.
Generally, the AO is at liberty to take a fresh call on the levy of penalty, as per law, in consonance with the fresh assessment as and when framed. As in the present case, in the second round of assessment proceedings, the assessee was assessed at the returned income. Therefore, the penalty levied u/s 271AAC(1) in question before us, in any case, is not sustainable and therefore, is quashed. As a result, the impugned order is set aside and the grounds raised by the assessee are allowed.
-
2024 (11) TMI 1199
Revision u/s 263 - double grant of TDS credit - revisionary proceedings were initiated in the case of the partnership firm on the basis that vide assessment order passed u/s 147 r.w.s. 144B TDS credit as granted to the partnership firm even though no income has been offered to tax by the partnership firm in its return of income filed - HELD THAT:- Since the TDS as appearing in the name of the partnership firm was only allowed to the partnership firm and not to the LLP, despite the fact that the corresponding income was offered to tax by the LLP, we are of the considered view that no prejudice has been caused to the Revenue in the present case.
Hon’ble Supreme Court in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] held that in order to invoke the provisions of section 263 of the Act, the assessment order must be erroneous and also prejudicial to the interest of the Revenue, and if one of the limbs is absent, i.e., if the order of the Income-tax Officer is erroneous but is not prejudicial to Revenue or if it is not erroneous but is prejudicial to Revenue, recourse cannot be had to section 263 of the Act. Since both the conditions for invoking section 263 of the Act are not satisfied in the present case, therefore, the impugned order passed by the learned PCIT under section 263 of the Act is quashed. Accordingly, the grounds raised by the assessee are allowed.
............
|
9911796707
