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NOTIFICATIONS
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Section 194-IB - CBDT amends rules to insert sub-rule 2B & 6A and notifies Form No 16C
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CBEC notifies fresh jurisdiction of Senior officers + vests powers as per provisions of Finance Act, 1994
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CBEC notifies fresh jurisdiction of Senior officers + vests powers as per provisions of Finance Act, 1994
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CBEC notifies fresh jurisdiction of Senior officers + vests powers as per provisions of Finance Act, 1994
OFFICE ORDER
Order No 98
CBDT issues transfer order of 35 ACIT/DCITs
CASE LAWS
2017-TIOL-1080-HC-ALL-IT
CIT Vs SHARK ROADWAYS PVT LTD: ALLAHABAD HIGH COURT (Dated: May 1, 2017)
Income tax - Sections 40(a)(ia), 194C
Keywords - trader - freight - cost of purchase & TDS
The AO during assessment had made addition to assessee's income by observing that Section 194-C was applicable as the Assessee was a Transporter and not Trader, and therefore, giving options, Assessee would not prefer a written contract if perceived as detrimental to his business functions and in case there did not exist an oral contract, it becomes a matter of absolute discretion of the two consenting parties and there could be brought nothing on record to prove that there was a contract, if the Assessee or the Contractor, decided to fulfill it or otherwise. In such circumstances, the only relying factors would be the trends of operation of Assessee which would bear a regular pattern of continuous transportation, and requires to be aggregated for the purpose of Section 194-C. The AO further observed that since Assessee was only a transporter and not a trader, there was only issue of freight/transportation and plea of freight becoming a part of cost of purchase did not arise. On appeal, the CIT(A) called upon Assessee to produce certain copies of challans and after verifying thereof found that Section 194-C was not at all attracted.
On appeal, the HC held that,
Whether Section 194C can be applied to a case of trader / transporter, without recording any finding based on evidence - NO: HC
++ the counsel for the appellant could not show that A.O. while taking a view against Assessee by reference to Section 194-C recorded its findings based on any evidence whatsoever and we find that it was only on assumption. It is for this reason A.O.’s findings have been reversed by C.I.T. (A) and Tribunal. These are concurrent findings of fact and when vouchers otherwise were verifiable, we find no reason to take an otherwise view in the matter.
Revenue's appeal dismissed
2017-TIOL-1079-HC-MUM-CUS
NOVACARE DRUG SOCIALITES PVT LTD Vs UoI: BOMBAY HIGH COURT (Dated: May 2, 2017)
Cus - An adverse order imposing duty demand was passed against the assessee, allegedly without following the principles of natural justice - Assessee allegedly was unable to obtain a copy of the SCN in time for filing a reply, before the impugned order was passed without considering the assessee's submissions - Moreover assessee claims to have not been given a proper hearing.
Held - A perusal of the impugned order itself clearly shows that the submissions of the assessee were not considered before passing such order - Thereby, assessee deserves an opportunity to present its case - Moreover, counsel for assessee had sought more time to file reply to SCN but the impugned order was passed, ignoring this request - Assessee, upon failing to locate the SCN, had sought copies of the same, which were delivered after some time - All such conduct violates the principles of natural justice and any such order is therefore, a nullity in the eyes of law - Impugned order quashed & fresh proceedings to be conducted - Though revenue suggests that the assessee avail some alternate remedy, the present case warrants interference by this court: High Court (Para 3,6,7,8,9)
Writ Petition Allowed
2017-TIOL-824-ITAT-DEL
ITO Vs ADITYA NARAIN VERMA HUF: DELHI ITAT (Dated: June 7, 2017)
Income Tax - Section 50C.
Keywords - Capital gains - Fair market value - Stamp duty - Transfer of property - Valuation officer.
The assessee had computed long term capital gains treating the fair market value as consideration received on transfer of property. AO asked the assessee as to why the fair market value may not be taken, as taken by the authority of State Government for the purpose of payment of stamp duty, as per the provisions of section 50C of the Act. The explanation of the assessee was that the sale was subject to several distressing circumstances and hence, the value adopted for the purposes of stamp valuation did not at all reflect the fair market value of the land and hence, was not accepted by the AO. The AO also did not accept the request of the assessee for making a reference to the valuation officer under the provisions of Section 50C(2). The AO instead took the fair market value of the land in question as per the value determined by the state authority for the purpose of stamp duty and capital gain was worked out accordingly. Upon appeal, CIT(A) ruled in favour of the assessee.
On appeal, the Tribunal held that,
Whether the decision of the AO to go by the valuation adopted for the purpose of stamp duty payment and not to make a reference to valuation authority is not legally sustainable as per the the provisions of Sec 50C(2) - YES: ITAT
++ on perusal of the provisions laid down u/s 50C, we fully concur with the finding of the CIT (A) that when the assessee in the present case had claimed before AO that the value adopted or assessed by the stamp valuation authority under sub section (1) exceeds the fair market value of the property as on the date of transfer, the AO should have referred the valuation of the capital asset to a valuation officer instead of adopting the value taken by the state authority for the purpose of stamp duty. The very purpose of the Legislature behind the provisions laid down under sub section (2) to section 50C of the Act is that a valuation officer is an expert of the subject for such valuation and is certainly in a better position than the AO to determine the valuation. Thus, non-compliance of the provisions laid down under sub section (2) by the AO cannot be held valid and justified. The jurisdictional High Court of Allahabad in the case of Dr. Shashi Kant Garg has held that it is well settled that if under the provisions of the Act an authority is required to exercise powers or to do an act in a particular manner, then that power has to be exercised and the act has to be performed in that manner alone and not in any other manner. Thus, the first appellate order on the issue is upheld.
Revenue's appeal dismissed
