9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (8) TMI 360 - AT - Income TaxNotice u/s 148 - income escaping assessment - AO failed to take note of exempted dividend income for disallowance of expenses u/s 14A - Held that - From these reasons recorded by the AO, it shows that the reasons given by the AO were vague, and even there is no mention that any expenses was incurred by the assessee for earning the dividend income. This is also a fact that reasons are recorded by the AO on the basis of profit and loss account, which was filed before the AO at the time of original assessment also, and no new material is available before the AO as per the reasons recorded by the AO - Following decision of Commissioner of Income-tax v. Kelvinator of India Ltd. 2010 (1) TMI 11 - SUPREME COURT OF INDIA - Decided in favour of assessee. Deduction u/s 36(1)(xii) - deduction given on account of Grant Given to societies - Held that - the grant is allowable as an expenditure under section 36(1)(xii) of the Act, and the matter was sent back to the AO for verification (i) whether the alleged non-refundable grants are given from grants received or not, and (ii) non-refundable grants sanctioned, are claimed as deduction only when fund are already utilised/ fund utilisation report are received. Rate of Depreciation on rail mil tankers - Held that - depreciation rate of 30% is allowable in the case of motor taxi and motor bus, but admittedly in the present case, the rail milk tanker cannot move of its own, and hence, the same cannot be classified as motor bus or motor taxi, and therefore, the same is not eligible for depreciation at the rate of 30%, and the AO has rightly allowed the depreciation at the rate of 15%, by treating the same as plant & machinery - Decided against assessee. Claim of deduction of an amount Disallowed earlier on account of non TDS - u/s 40(a)(ia) - Held that - As per the proviso to section 40(a)(ia) of the Act, if the tax has been deducted in a subsequent year or if already deducted in the earlier year, has been paid after the due date specified in section 139(1), such sum shall be allowed as deduction in computing the income of the previous year in which such tax has been paid - The requirement of proviso is satisfied by the assessee, but the learned CIT(A) has put one more condition that, unit for which this expenditure was incurred, is not being owned by the assessee in the present year, in which the payment of TDS was made - Decided in favour of assessee. Determination of opening WDV - Held that - It is settled position of law that the closing WDV of the preceding year has to be adopted as opening WDV of the present year to work out the depreciation allowable to the assessee - Decided in favour of assessee. Disallowance u/s 41(1) - provision written back - deemed income - Held that - when provision was made, the assessee was not liable to tax, hence, if the provision is reversed in the year of making the provision, it is not resulting into any tax liability, because the assessee was not taxable in that year, and therefore, reversal of such a liability cannot give rise to tax in the year of reversal, when it is not giving any benefit to the assessee, in the year of making the provision - even if it is held that income has to be assessed in the year of making the provision, then this deduction on account of provision under section 36(1)(vii) is not allowable deduction in that year, because under this section, actual write off is allowable and not the provision. This is a pre-requirement of section 41(1) that where the allowance or deduction has been made in the assessment for any year, in respect of loss, expenditure or trade liability incurred by the assessee, and the same is subsequently ceased or has been remitted, then there is income under section 41(1) - Decided in favour of assessee.
Issues Involved:
1. Validity of reopening assessment under Section 147. 2. Disallowance under Section 14A. 3. Deduction under Section 36(1)(viii). 4. Depreciation on rail milk tankers. 5. Disallowance under Section 40(a)(ia). 6. Interest under Sections 234A, 234B, 234D, and recovery under Section 244A. 7. Additional grounds related to depreciation, interest income, and disallowance under Section 40A(9). 8. Addition under Section 41(1) for provision write-back. Issue-wise Detailed Analysis: 1. Validity of Reopening Assessment under Section 147: The assessee contested the reopening of assessment under Section 147, arguing it was based on a change of opinion without any new tangible material. The Tribunal found that the reasons recorded by the Assessing Officer (AO) were vague and based on the profit and loss account already available during the original assessment. The Tribunal cited the Supreme Court's decision in Commissioner of Income-tax v. Kelvinator of India Ltd., holding that reopening based on a mere change of opinion is not valid. Consequently, the Tribunal quashed the reassessment order, allowing the assessee's appeal. 2. Disallowance under Section 14A: For A.Y. 2004-2005, the Tribunal did not adjudicate this issue due to the quashing of the reassessment. For A.Y. 2007-2008, the Tribunal noted that Rule 8D was not applicable retrospectively and restored the matter to the AO for fresh adjudication, following the Tribunal's directions in the assessee's case for A.Y. 2006-2007. 3. Deduction under Section 36(1)(viii): The Tribunal upheld the CIT(A)'s decision disallowing the deduction under Section 36(1)(viii) for A.Y. 2007-2008, as the issue was covered against the assessee by the Tribunal's order for earlier years. 4. Depreciation on Rail Milk Tankers: The Tribunal rejected the assessee's claim for depreciation at 30% on rail milk tankers, affirming the AO's classification of the tankers as plant and machinery eligible for 15% depreciation. The Tribunal found no merit in the assessee's contention that the tankers were akin to motor buses or taxis. 5. Disallowance under Section 40(a)(ia): For A.Y. 2007-2008, the Tribunal disagreed with the CIT(A)'s additional condition that the units for which expenses were incurred were no longer owned by the assessee. The Tribunal remanded the matter to the AO to verify if the expenses were otherwise allowable and if the disallowance was solely due to TDS non-compliance. 6. Interest under Sections 234A, 234B, 234D, and Recovery under Section 244A: The Tribunal noted that the interest liabilities under Sections 234B and 234C, and recovery under Section 244A, were consequential issues and would be addressed accordingly. 7. Additional Grounds: - Depreciation on Closing WDV: The Tribunal directed the AO to adopt the closing WDV of the preceding year as the opening WDV for the current year. - Interest Income: The Tribunal rejected the assessee's claim, following its earlier decisions against the assessee. - Disallowance under Section 40A(9): The Tribunal also rejected this ground, consistent with its earlier rulings. 8. Addition under Section 41(1) for Provision Write-back: The Tribunal upheld the CIT(A)'s deletion of the addition under Section 41(1) for both the excess provision for sales tax and other provisions written back. It reasoned that no benefit accrued to the assessee when the provisions were made, as the assessee was not taxable during those years, and the provisions were not allowable deductions under Section 36(1)(vii). Combined Result: - The assessee's appeal for A.Y. 2004-2005 was allowed, and the Revenue's appeal for that year was dismissed. - For A.Y. 2007-2008, the assessee's appeal was partly allowed for statistical purposes, and the Revenue's appeal was dismissed.
|
