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Showing 41 to 60 of 1561 Records
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2022 (12) TMI 1521
Condonation of delay in filing appeal before Tribunal - appeal is time-barred by 101 days - assessee submitted that the reason for delay in filing appeal was due to a communication gap between the CA of the assessee representing the matter before Ld. CIT(Appeals) and M/s Chajjed and Co. who were to argue the case before ITAT - HELD THAT:- The Vishakhapatnam ITAT in the case of Smt. Samanthapudi Lavanya [2021 (5) TMI 26 - ITAT VISAKHAPATNAM] held that where assessee was under bona fide impression that its appeal had been filed by accountant, but came to know fact of not having filed appeal when there was pressure from department for payment of demand, delay of 492 days in filing appeal was to be condoned, in the interests of justice. Accordingly, looking into the facts of the instant case, and the period of delay under consideration, in the interests of justice, we are hereby condoning the delay in filing the appeal. The Ld. Departmental Representative has also not objected to condonation of delay in filing of appeal by the assessee.
Scope of limited scrutiny - grounds of appeal included disallowance of commission and purchases made by AO - The assessment order has travelled beyond the scope of notice issued u/s 143(2) of the Act, we are in agreement with the contention that the assessment order was initiated as “limited scrutiny assessment” and it is settled law that unless the limited scrutiny assessment is converted into full scrutiny assessment, after taking due approval as mandated under the Act, such assessment order has to be restricted in scope to the issues on which the notice was issued/assessment was initiated.
In our considered view, the term “interest expenses” cannot be so general so as to encompass within its scope disallowance under section 14A as well. Further, we observe that the commission payment in the instant facts were disallowed on the ground that the same were “bogus” in nature and not on account of “related party mismatch” as mentioned in the notice under section 143(2) of the Act. Accordingly, the assessment order has been passed in respect of issues which were not the subject matter of “limited scrutiny assessment” notice section 143(2) of the Act.
In the case of Chaitanya Bansibhai Nagori [2022 (6) TMI 225 - ITAT AHMEDABAD] held that in limited scrutiny, AO cannot go beyond dispute raised in section 143(2) notice. In the case of Dharmin N. Thakkar [2022 (6) TMI 255 - ITAT AHMEDABAD] ITAT quashed the assessment order on the ground that the order was passed beyond the scope of limited scrutiny as there was no question the said notice for the limited scrutiny under section 143(2) of the Act, for the cash balance. In the case of Rajesh Jain [2005 (4) TMI 629 - ITAT CHANDIGARH] ITAT held that the jurisdiction of the Assessing Officer in such cases where the notices are issued for limited scrutiny is confined to the claims he has set out in the notice for verification. This position of law was further elaborated by the CBDT in its Circular No. 8/2002, dated 27-8-2002.
Since the assessment order has travelled beyond the scope of notice issued under section 143(2) of the Act, the additional Grounds of Appeal of the assessee is allowed.
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2022 (12) TMI 1520
Revision u/s 263 - CIT-DR submits that the AO has not made desired investigation during assessment and accepted the returned income without further investigation on the issue of cash seized during the search - HELD THAT:- We find that in the assessment order, there is no discussion about the issue raised by the ld. CIT in the show cause notice u/s 263 about the cash of Rs. 15.50 lacs. We further find that in reply to show cause notice, the assessee specifically stated that the cash of Rs. 15.50 lacs were of the assessee-company. And the assessee notionally reduced the cash balance by passing accounting entry by crediting cash by Rs. 15.50 lacks and debiting Rs. 15.50 lacks to cash seized in the search on 18.06.2016. We find that the ld. Pr.CIT has not disputed any other amount deposited in the form of SBN except the cash of Rs. 15.50 lacs.
We further find that the department has already made addition of Rs. 15.50 lacs in the hands of Director of the assessee. Assessee vehemently submitted that when such amount was added in the hands of Director of the assessee, a reverse zonal entry was made to treat the said amount in the hands of Director of assessee.
AR further stated that such addition was not disputed by the Director of the assessee in further appeal. AR before us raised a very limited contention that once the amount of Rs. 15.50 lacs is already added in the hands of Director of assessee, the same cannot be added in the hands of assessee company and thus, the assessment order is not at all prejudicial to the interest of revenue. We find merit in the submission of assessee that such submission is not disputed by the ld. Pr. CIT while revising the assessment order.
We find that the revenue has already taxed the said amount in the assessment order dated 28/03/2016 passed u/s 143(3) for A.Y. 2014-15 in case of Director of assessee. Thus, the assessment order is not at all prejudicial to the interest of revenue. Thus, in our considered view, the twin condition as required to revise the assessment order is not meet out in the present case, therefore, the order passed by the ld. Pr.CIT is set aside and the grounds of appeal raised by the assessee are allowed.
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2022 (12) TMI 1519
Addition of deposits into bank account - assessee has not explained the source of deposit of this amount to the assessee’s bank account - HELD THAT:- Assessee explained before us that assessee has placed necessary evidence before the lower authorities that assessee having salary income which has been regularly deposited into bank account and also withdrawn from SB account from HDFC & Canara banks. The total cash withdrawn by assessee was Rs. 13,72,500/- during the financial years 2015-16 & 2016-17.
Out of which the assessee explained that Rs. 6.46 lakhs was used to redeposit only bank account during the demonetization period. However, the AO considered only Rs. 2.5 lakhs available to assessee to redeposit to bank accounts and this is not based on any material evidence. There was no evidence brought on evidence by the AO that the assessee is left with only Rs. 2.5 lakhs out of Rs. 13,72,500/- withdrawn by assessee from various bank accounts.
Unless and until the AO brought on record any material that assessee has spent balance amount of Rs. 11,22,500/-, which has been withdrawn in earlier financial year 2015-16 & 2016-17, it is not possible to hold that the said amount is not available to assessee to redeposit into bank account.
Considering the quantum of withdrawals made by the assessee in earlier financial years, that the amount of Rs. 3.96 lakhs addition sustained by the AO has been sourced by the earlier withdrawals and due credit to be given. Accordingly, considering the meagre amount of Rs. 3.96 lakhs, which addition is made by the AO, the amount withdrawn by assessee on earlier occasion has been unutilized and available to the assessee to redeposit to the bank account and according to me the source has been explained by the assessee by earlier withdrawals and the addition sustained by the CIT (A) is deleted. Appeal filed by the assessee is allowed.
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2022 (12) TMI 1518
Penalty u/s 271(1)(c) - Assessment was reopened for claiming excess loss - HELD THAT:- The Hon’ble Bombay High Court in the case of CIT – vs.- Jet Airways [2010 (4) TMI 431 - HIGH COURT OF BOMBAY], Ranbuxy Laboratories [2011 (6) TMI 4 - DELHI HIGH COURT] and Md. Juned [2013 (2) TMI 292 - GUJARAT HIGH COURT] propounded unanimously that unless an addition is being made in a reassessment order on an item for which assessment was reopened, no other item can be added.
There is no application of mind at the end of the ld. A.O. either in the assessment order or in the penalty proceedings. He has not categorically proved that assessee has concealed the income or furnished the inaccurate particulars. As observed above, there is an inherent contradiction even for opening of the assessment, vis-a-vis ultimate additions made in the hands of the assessee.
On this strength of the Hon’ble three High Courts’ decision, this addition itself would not be sustainable though the issue is not before us and we cannot express our opinion about that in the present proceedings, but we can take cognizance of this fact for absolving the assessee from levy of penalty under section 271(1)(c) of the Income Tax Act. Appeal of the assessee is allowed.
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2022 (12) TMI 1517
Dishonour of Cheque - insufficient funds - Vicarious liability of petitioner - petitioner was in no way engaged with the business or affairs of respondent No.2, since he had retired more than 9 months earlier - HELD THAT:- Merely being a signatory to a cheque does not, in and of itself, make a person guilty of the offence under section 138 of the NI Act. The offence is triggered at the stage when a cheque is returned unpaid by the bank inter-alia for insufficiency of funds. For guilt to be imputed to an officer of a company, at the very least, the officer should have been responsible for the business and affairs of the company and for honouring the cheque on the date that the cheque was returned unpaid.
In the present case, it is clear that though the petitioner co-signed the cheques in question, he had retired from the company more than 09 months before the cheques came to be presented; and could not therefore have ensured sufficient funds in the bank account of the company to honour the cheques, even if he had so desired.
The deeming provision contained in section 141 NI Act would not apply to the petitioner, since he was no longer in charge of the affairs of the respondent company on the date that the offence defined in section 138 was committed - Re-notify on 29th March 2023.
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2022 (12) TMI 1516
Invalid return - Validity of intimation issued u/s 143(1) on invalid return - assessee did not rectify the defects as per the notice issued u/s 139(9) - HELD THAT:- A perusal of the communication issued to the assessee clearly shows that the CPC has issued the notice u/s.139(9) of the Act intimating defects in the return. In the notice, it has been categorically mentioned that if the defects were not removed, the return filed by the assessee would be treated as invalid return.
Admittedly, the assessee has not rectified the defects. Consequently, the return filed by the assessee is liable to be treated as invalid return. Once the return filed by the assessee is treated as invalid return, intimation u/s.143(1) of the Act issued on the said return admittedly, is invalid and consequently the same stands quashed. Appeal of assessee allowed.
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2022 (12) TMI 1515
Eligibility and impartiality of the Sole Arbitrator - Mandatory disclosure requirements u/s 12(1) of the Arbitration and Conciliation Act, 1996 - Unilateral appointment of the Arbitrator - Validity of the arbitral award - Appellant entered into a loan-cum-hypothecation agreement ('the Agreement') in respect of vehicle, with the respondent -
HELD THAT:- In terms of Explanation 1 to Section 12(1) of the A&C Act-the grounds as stated in the Fifth Schedule of the A&C Act-the learned Sole Arbitrator was required to be guided by the grounds as stated in the Fifth Schedule of the A&C Act. Entry 22 of the Fifth Schedule of the A&C Act specifically provides circumstances where an arbitrator has, within the past three years, been appointed as an arbitrator on more than two occasions by either of the parties or their affiliates. This Court is unable to accept that such a disclosure is not mandatory and is merely at the discretion of the arbitrator. The onus for disclosing the number of matters in which the learned Sole Arbitrator had been appointed as such, at the instance of the respondent, rested with the learned Sole Arbitrator. The assumption that the burden to ascertain the circumstances that may give rise to justifiable doubts as to the independence and impartiality of the arbitrators is on the parties, is erroneous; this disclosure is necessarily required to be made by the person approached in connection with his appointment as an arbitrator.
In the present case, the learned Commercial Court had proceeded on the basis that the appellants are precluded from raising an objection as to the ineligibility of the arbitrator as no such application was made by the appellants before the Arbitral Tribunal. The learned Commercial Court has also faulted the appellants by not providing the full particulars as to the number of arbitrations conducted by the learned Sole Arbitrator for the respondent company in the past three years. In addition, the appellants have been faulted by the learned Commercial Court in not filing an application before the learned Sole Arbitrator, seeking a declaration as required u/s 12(5) of the A&C Act.
This Court is of the view that the approach of the learned Commercial Court is flawed. Unilateral appointment of the Arbitrator by the respondent is impermissible.
The fact that the learned Sole Arbitrator had been engaged in a number of matters by the respondent is, concededly, a material fact that would raise justifiable grounds as to his independence and impartiality. Thus, in addition to being ineligible as an arbitrator u/s 12(5) of the A&C Act, the grounds giving rise to justifiable doubts as to the independence and impartiality exist in the present case.
The learned Sole Arbitrator was required to disclose in writing such circumstances which are likely to give rise to justifiable doubts as to his independence and impartiality, but he had failed to make any such disclosure. In our view, since the grounds giving rise to justifiable doubts as to impartiality exist, failure to make such disclosure vitiates the arbitral proceedings and the impugned award.
Thus, the appeal is allowed. The impugned order as well as the impugned award are set aside.
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2022 (12) TMI 1514
Mandation to issue notice u/s 143(2) - whether the notice required to be issued under Section 143(2) was issued? - HELD THAT:- Tribunal has referred to a remand report submitted by the Assessing Officer wherein the Department could not controvert the contention made by the assessee that no notice under Section 143(2) of the Act was issued by the Deputy Commissioner of Income Tax, Circle-13(1), Kolkata who completed the assessment.
Tribunal has also noted the relevant decisions and rightly held that the assessment order is bad in law for the reason that the Assessing Officer passed the order u/s 143(2) of the Act without issuing any notice 143(2). We find that there is no substantial question of law arising for consideration in this appeal.
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2022 (12) TMI 1513
Seeking stay of the operation of the Look Out Circular (LOC) - seeking permission to travel outside India to U.K. for medical reasons - petitioner did not cooperate - HELD THAT:- As per the facts of this matter as also the statements made by the Petitioner to the authorities, it is clear that there is non-cooperation by the Petitioner. Under these circumstances, at this stage, the Court is not inclined to let the Petitioner travel abroad. However, over the next two months, if the Petitioner fully cooperates with the SFIO, the Court is willing to reconsider the issue.
Accordingly, list this matter on 20th March, 2023.
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2022 (12) TMI 1512
Issuance and continuation of the Look-Out Circular issued against him at the behest of the Income Tax Department - Black Money - Appellant very fairly submits that the LPA may be disposed of with a request to the learned Single Judge to decide the writ petition at an early date.
HELD THAT:- The prayer made by learned Senior Counsel for the Appellant is genuine. The learned Single Judge is requested to decide the writ petition as expeditiously as possible. The learned Single Judge shall be at liberty to decide the case on its own merits.
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2022 (12) TMI 1511
Release of freezed amount - appeal against acquittal is pending - Whether the appeal against the acquittal can be said to be a continuation of prosecution of the acquitted accused or not?
HELD THAT:- Once a person is acquitted, then there is a presumption of innocence in his favour. The filing or pendency of an appeal against the acquittal cannot be regarded as a continuation of trial/prosecution and also cannot be treated to be pendency of judicial proceedings as the initial presumption of innocence gets re-enforced by the order of acquittal.
The State is incorrect in submitting that the appeal against the acquittal is a continuation of trial. Once a person has been acquitted irrespective of the fact that whether any appeal against his acquittal is pending or not, he becomes entitled for the benefits which otherwise would have accrued to him without there being any finding of guilt against the petitioner specifically when the account No.4856 is not a subject matter of the criminal trial.
The stand taken by the State is beyond imagination and reconciliation either on factual aspect or on legal aspect. Once SHO Police Station Basai, Tahsil and District- Datia (M.P.) had written to the Collector, Datia that account No.4856 is not a part of Crime No.20/2014 registered at Police Station Basai, Tahsil and District Datia and no document pertaining to account No.4856 has been made a part of the investigation as well as the chargesheet, then the State had no authority whatsoever to keep the account of the petitioner in a frozen condition. Thus, it is clear that the State has illegally withheld the amount of the petitioner in a most arbitrary and malafide manner.
This Court is left with no other option but to direct the respondent No. 3 to immediately release the amount so deposited in account No.4856 - petition allowed with costs.
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2022 (12) TMI 1510
Eligibility to submit the resolution plan under Section 29A(f) of the IBC - rejection on the ground that the resolution applicant was ineligible under Section 29A(f) of the IBC at the time of submission of the resolution plan - HELD THAT:- Since the Court is apprised of the fact that substantially higher offers are now made available to the CoC, it would be appropriate and proper that the CoC is permitted to proceed further on the basis of the fresh EoIs which have been received. Since the subsequent communication dated 16 February 2021 issued by BSE operates to lift the restraint status that was imposed on the appellants, it would be appropriate to permit the appellants to submit a resolution plan and an EoI to the CoC within a period of thirty days.
The bank guarantees and the earnest money which were submitted by the appellants with their resolution plan shall be returned back to the appellants so as to facilitate the submission of a fresh resolution plan together with a fresh bank guarantee - The period for the completion of the process shall stand extended by sixty days from the date of this order. After completing the process, the RP shall file a fresh application before the adjudicating authority for approval of the resolution plan in terms of the provisions of Section 31 of the IBC.
The impugned judgment and order of the NCLAT is set aside and substituted by the directions - Appeal disposed off.
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2022 (12) TMI 1509
Refund of excess tax - Learned advocate Mr.Uchit Sheth seeks liberty for revival in case of any difficulty - HELD THAT:- This petition is disposed of with this assurance on the part of respondent-State, with a liberty to revive, in case of any difficulty.
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2022 (12) TMI 1508
Addition u/s 56(2)(viib) - rejection of valuation report of the valuer - premium received on issue of equity share exceeds its ‘Fair Market Value’ (FMV) and consequently the excess premium received on issue of equity share is susceptible to tax in view of provisions of Section 56(2)(viib) as deemed income of the assessee - Substitution of value of shares - valuation as per DCF method - AO proceeded to determine value based on actual figures of profits for next two years, i.e., F.Ys. 2015-16 and 2016-17 in substitution of the projected profits before tax adopted in the valuation report
HELD THAT:- The assessee in the instant case has proceeded to issue equity share at a premium on the basis of independent valuer report wherein DCF method was adopted for the purposes of determination of fair market value. The Assessing Officer has not disputed the DCF method adopted for valuation per se. AO however, has compared the projected figures used by the valuer with the actual figures available at the time of assessment.
AO displaced the FMV determined as per DCF method based on projected figures by replacing the same by actual figures to discard the justification of share premium. We find that such action of the AO substitute the figures estimated at the time of valuation towards ensuing years by actual figures made available to AO at the later point of time is squarely in contrast to the judgment of Cinestaan Entertainment [2021 (3) TMI 239 - DELHI HIGH COURT] and decision of Intelligrape Software Pvt. Ltd [2020 (10) TMI 403 - ITAT DELHI]
In Cinestaan [2021 (3) TMI 239 - DELHI HIGH COURT] took cognizance of the identical situation, i.e., the AO had disregarded the valuation report of the assessee primarily on the ground that the projections of revenue considered for the purpose of valuation do not match with the actual revenue arose in the subsequent years - in the fact situation observed that the assessee company has adopted a recognized method of valuation and the revenue could not show that assessee has adopted demonstrably wrong approach. It was observed that valuation is not an exact science and therefore cannot be done with arithmetic precision.
It is a technical and complex issue which should best be appropriately left to the consideration and wisdom of experts in the field, having regard to the imponderables which enter the process of valuation of shares. The Hon’ble High Court thus upheld the action of the ITAT and consequently the additions made under the deeming provisions of Section 56(2)(viib) made by the AO were reversed.
Similar view has been taken in Intelligrape Pvt. Ltd [2020 (10) TMI 403 - ITAT DELHI] wherein it was observed that the valuation based on future projections at the time of issue of shares cannot be inferred as the actual figures may vary depending on the market conditions and host of other factors. Appeal of the assessee is allowed.
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2022 (12) TMI 1507
Classification of services - Works Contract Service or not - Construction / Building of Multi-Level Car Parking (MLCP) built by the appellant at New Delhi Airport (Terminal-III) - it was held by CESTAT that the Multi-Level Car Parking (is an amenity primarily for passengers), is adjacent to the main terminal building and the same is the part of aerodrome/ airport.
HELD THAT:- The delay is condoned - appeal dismissed.
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2022 (12) TMI 1506
Validity of reopening of assessment - Bogus LTCG claimed - addition u/s 68 - penny stock transaction - HELD THAT:- From the reasons recorded by AO, it is vivid that there is merit in the arguments advanced by ld DR for the Revenue. We note that assessing officer had received the information from the DDIT (Investigation) unit3(2) Kolkata in respect of the BSE listed Penny stock companies. After getting such information, assessing officer has applied his mind and then framed the reasons for reopening the assessment, therefore it is not a borrowed satisfaction. The assessing officer has also mentioned in the reasons recorded the quantity of shares sold, name of the scrip, and amount received on sale of such shares etc. Thus, we note that reasons recorded by the assessing officer are in accordance with the provisions of law. Therefore, based on these facts and applicable precedents to these facts, we dismiss the additional grounds raised by the assessee.
Addition u/s 68 - We note that findings of the Hon`ble Jurisdictional High Court of Gujarat in the case of Jagat Pravinbhai Sarabhai (2023 (1) TMI 44 - GUJARAT HIGH COURT] is squarely applicable to the assessee`s facts under consideration. The genuineness of investment in the shares by the assessee was substantiated by him by producing contract note, Transaction was through recognised Broker, transaction was done through banking channel on which STT was paid. The shares were held by assessee, as an Investor for a period of seven/ eight years. The investment was made in the year 2003 and sold in 2010-11. The shares were retained for more than seven years and were sold after such long time. These circumstances suggest that the investment was not bogus. The shares were purchased in order to invest and not for the purpose of earning exempted income by frequent trading in short time.
We note that Judgment of Hon`ble Calcutta High Court in the case of Swati Bajaj and others [2022 (6) TMI 670 - CALCUTTA HIGH COURT] should not be applicable to the assessee as it is outside the territorial jurisdiction of Gujarat. However, the Judgment of Hon`ble Jurisdictional High Court of Gujarat in the case of Jagat Pravinbhai Sarabhai(supra) should be applicable to the assessee`s case, as it is the judgment of Jurisdictional High Court.
Addition u/s 69C on account of commission paid @ 2% or 3% of bogus long term capital gain - Since, we have deleted the alleged addition of bogus LTCG, hence addition made by AO does not have leg to stand, therefore it is hereby deleted.
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2022 (12) TMI 1505
Addition u/s 69A in respect of cash deposited in bank accounts during demonetization period - Assessee argued that provisions of this section cannot be invoked in case where concerned money is already recorded in the books of account - HELD THAT:- On a perusal of the cash books for the year under consideration, it stands revealed beyond doubt that both the cash deposits each in mentioned bank accounts on 29.11.2016 were made from his books of accounts, thus no justification in dubbing of the cash deposits in question as unexplained money of the assessee u/s.69A of the Act by the lower authorities.
Also we cannot remain oblivion of the fact that as the aforesaid claim of the Ld. AR not only militates against the observations of the lower authorities, but also there is nothing discernible from the record which would reveal that the authenticity of the cash book of the assessee for the year under consideration had been looked into by the lower authorities, therefore, it would be unfair to summarily accept the same without subjecting the same to necessary verification - the matter in all fairness requires to be revisited by the A.O. A.O is herein directed to re-adjudicate the issue after duly taking cognizance of the explanation of the assessee as regards the source of the cash deposits in the bank accounts in question. Appeal of the assessee is allowed for statistical purposes.
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2022 (12) TMI 1504
Seeking revival of appeal - Appellants are BPTP Spacio Park Serene Flat Allottees Welfare Association - HELD THAT:- Liberty granted to the Appellant to revive this Appeal in event the order dated 07.12.2022 does not survive. It is also noticed that in Company Appeal (AT) (Ins.) No. 1382 of 2022, the interim order was passed on 18.11.2022.
Appeal disposed off.
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2022 (12) TMI 1503
Challenge to impugned Assessment cum penalty cum Interest Order - violative of the principles of natural justice - HELD THAT:- Having found that the petitioner filed this writ petition against the impugned assessment order without availing the alternative remedy available to him, without expressing the views on the merits of the case, the writ petition is disposed off affording opportunity to the petitioner to approach the appellate authority.
The Writ Petition is disposed of.
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2022 (12) TMI 1502
Shifting the goods to a warehouse - Section 49 of the Customs Act, 1962 - Petitioner is incurring high demurrage charges in the IGI Airport - HELD THAT:- The Petitioner is permitted to make a representation to the Customs authorities for moving the cargo to a recognized warehouse. The same shall be considered and if the documents are found in order, the same shall be processed and decided within 3 days after moving of the representation.
List on 6th February, 2023.
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