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S. 263 Revision (show-cause notice): A Writ Petition to challenge a s. 263 notice is maintainable if the authority issuing the show-cause notice lacks jurisdiction and if the notice is clearly barred by law. As per Alagendran Finance 162 Taxman 465 (SC), the two year limitation period stipulated u/s 263(2) runs from the date of the original assessment and not from the date of reassessment when the s. 263 notice deals with issues which are not subject matter of reassessment proceedings (MAK Data 358 ITR 593 (SC) & Malabar Industrial Co 243 ITR 83 (SC) distinguished)
M/s. Indira Industries vs. PCIT
(2018) TaxCorp(LJ) 15230 (HC-MADRAS) · Section. 263
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'On Money': The fact that the assessee has sold flats at an undervaluation does not mean that he has understated the consideration and earned undisclosed 'on money'. The mere presumption that excess price could have been charged is not a ground for coming to the conclusion that the assessee did charge a higher price. The burden of proving such understatement or concealment is on the Revenue (All important judgements considered)
M/s. Shah Realtors vs. ACIT
(2018) TaxCorp(LJ) 15229 (ITAT-MUMBAI)
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ITAT - Assessment made u/s. 143(3) r.w.s. 144C(13) on a foreign Company which had voluntarily wound up is not a nullity.
Pesak Ventures Ltd. vs. DCIT
(2018) TaxCorp(LJ) 15222 (ITAT-DELHI)
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HC - Investment allowance u/s. 32A on available on computers / equipments even though not directly used in production.
Brooke Bond India Limited Vs. CIT
(2018) TaxCorp(LJ) 15209 (HC-CALCUTTA) · Section. 32A
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S. 159/ 163/ 176: While a notice/ order on a dead person/ wound-up company is a nullity, this is subject to the condition that the department is made aware of the death/ winding-up. If the legal representative, either voluntarily or in response to a notice issued against the deceased but served upon his agent, allows the assessment proceedings to continue against the deceased/ wound-up company without any objection and lets the AO make an assessment order, it would not be open for him to take a plea at the appellate stage, as a last resort or as an afterthought, that the proceedings taken and the assessment order made against the deceased/ wound-up company are nullity. In such cases, the assessment is liable to be set-aside for a fresh assessment in accordance with law instead of its annulment
Pesak Ventures Ltd. vs. DCIT
(2018) TaxCorp(LJ) 15208 (ITAT-DELHI) · Sections. 159, 163, 176
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S. 68: Addition of undisclosed income cannot be made on the basis of (a) entries in dairy found during survey & (b) admission of director in s. 133A survey if assessee has filed a retraction and alleged that the entries/ statement were recorded under pressure. A s. 133A statement is merely information simplicitor and not evidence per se. Addition cannot be sustained if the Dept has not investigated the matter and find material to support the addition
PCIT. vs. Texraj Realty P. Ltd.
(2018) TaxCorp(LJ) 15207 (HC-GUJARAT) · Section. 68
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ITAT - Since CBDT circular 3/2015 was not applicable as the amounts paid by assessee were towards FTS, Sec. 40(a)(i) dis-allowance in 'entirety' upheld.
Chemical Process Piping Pvt. Ltd. Vs. Shri R. M. Madhavi, Erstwhile Additional CIT
(2018) TaxCorp(LJ) 15200 (ITAT-MUMBAI) · Section. 40(a)(i)
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ITAT - Trade advance not deemed dividend, since business transactions between assessee and the company were intermingled and the outstanding balances occurred due to commercial exigencies such as regular trading business and consistent services rendered by assessee.
Smt. Rathinam Thirupathiswamy Vs. ACIT
(2018) TaxCorp(LJ) 15199 (ITAT-CHENNAI)
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HC - Writ allowed - Merely because the Department was not intimated about the death of the assessee, that cannot, by itself, extend the period of limitation u/s 148 prescribed under the Statute.
Alamelu Veerappan Vs. ITO
(2018) TaxCorp(LJ) 15192 (HC-MADRAS)
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HC - Insists on Tax Clearance Certificate u/s. 230 proviso for the director to leave the country considering liability for payment of tax and penalty demands of the company to the extent of Rs.408.6 Cr.
Mailakkattu Varghese Uthup Vs. Pr. CIT
(2018) TaxCorp(LJ) 15191 (HC-KERALA) · Section. 179
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S. 254: While deciding an application for stay of demand, the Appellate Tribunal can only consider the prima facie case of merits. It cannot give a final finding on the merits and decide the appeal itself
Maharashtra State Road Transport Corporation vs. CST
(2018) TaxCorp(LJ) 15186 (HC-BOMBAY) · Section 254
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S. 68 Bogus share premium: Addition cannot be made on the ground that the directors of the share subscribers did not turn up before the AO. The assessee can be required to prove only such facts which are in his knowledge. Creditworthiness of the subscriber cannot be disputed by the AO of the assessee but by the AO of the subscriber. If the assessee has discharged its onus to prove identity, creditworthiness & genuineness of the share applicants, the onus shifts to AO to disprove the documents furnished by assessee. In absence of any investigation, much less gathering of evidence by the AO, an addition cannot be sustained merely based on inferences drawn by circumstance (all judgements considered)
ITO vs. Wiz-Tech Solutions Pvt. Ltd
(2018) TaxCorp(LJ) 15185 (ITAT-KOLKATA) · Section 68
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ITAT - Subsidy for modernizing textile industry being capital in nature, to be excluded from book-profits u/s. 115JB.
Alok Industries Ltd. Vs. DCIT
(2018) TaxCorp(LJ) 15179 (ITAT-MUMBAI) · Section. 115JB
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ITAT - As per tonnage tax scheme u/s. 115VN, income on sale of ships will fall under the head ‘capital gains’ and special provision u/s. 50 dealing with depreciable assets is attracted and not income from other sources.
Ocean Sparkle Ltd. Vs. DCIT
(2018) TaxCorp(LJ) 15178 (ITAT-HYDERABAD)
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S. 282/ 292B: Entire law on "service of notice" and difference between "issue" and "service" of notice explained. S. 147 proceedings are initiated when the notice is "issued". Though "service" of notice u/s 147/148 is not a mere procedural requirement, but a condition precedent for initiation of proceedings, the service upon a person who was not authorized to receive notice does not render the proceedings null and void if the assessee complied and entered appearance
CIT. vs. Sudev Industries Limited
(2018) TaxCorp(LJ) 15155 (HC-DELHI) · Sections. 282, 292B
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S. 263 Revision: Explanation 2 to s. 263 inserted by the FA 2015 (which confers power upon the CIT to revise assessments where inadequate inquiries have been conducted by the AO) is prospective in nature and does not apply even to a case where the CIT passed the order after Explanation 2 came on the statute. The CIT should show that the view taken by the AO is unsustainable in law. The action of the CIT in directing the AO to conduct enquiry in a particular manner is contrary to the law interpreted by the Delhi High Court in CIT v. Goetze (India) Ltd 361 ITR 505. If such course of action is permitted, the CIT can find fault with each and every assessment order without making any enquiry or verification in order to establish that the assessment order is not sustainable in law
Indus Best Hospitality & Realtors Pvt. Ltd. vs. PCIT
(2018) TaxCorp(LJ) 15154 (ITAT-MUMBAI) · Section. 263
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S. 147: Law on reopening of assessments with four years and beyond four years explained with reference to all important case laws. Strictures passed against the AO for making comments which are highly objectionable and bordering on contempt and for being oblivious to law. As the very same ACIT had passed series of orders reopening assessments in ignorance of legal position, a compilation of judgments on reassessment proceedings should be furnished to the Commissioner to study the same. The position of law regarding the writ remedy is so settled, that it is understood even by the law students
Zuari Foods and Farms Pvt. Ltd. vs. ACIT
(2018) TaxCorp(LJ) 15153 (HC-BOMBAY) · Section. 147
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S. 251(1): While the CIT(A) has the power to "enhance the assessment", he has no power to travel beyond the subject-matter of the assessment and is not entitled to assess new sources of income. In order for the CIT(A) to enhance, there must be something in the assessment order to show that the AO applied his mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non-taxability and not to any incidental connection (all judgements considered)
Jagdish Narayan Sharma vs. ITO
(2018) TaxCorp(LJ) 15152 (ITAT-JAIPUR) · Section. 251(1)
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S. 271(1)(c) Penalty: Merely using the words that there is concealment of income and / or furnishing inaccurate particulars of income is not sufficient. The same should be particularized by the AO with a finding as to what particulars of income has been concealed or what particulars of income are inaccurate. The words 'concealment' or giving 'inaccurate particulars of income' have to be read strictly before penalty provisions u/s 271(1)(c) of the Act can be invoked. Zoom Communication 371 ITR 570 (Del) distinguished
CIT. vs. L&T Finance Ltd.
(2018) TaxCorp(LJ) 15151 (HC-BOMBAY) · Section. 271(1)(c)
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Bogus Long-term capital gains: As neither the statement of Mukhesh Choksi was provided to the assessee nor cross-examination was allowed and it was not even placed on record, the action of the AO in treating the LTCG and STCG as income from other sources was not warranted
ITO. Vs. K. Ramakrishna Reddy
(2018) TaxCorp(LJ) 15150 (ITAT-HYDERABAD)
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