TODAY'S CASE (DIRECT TAX)

November 30, 2021

++ I-T - Notice issued to entity which is non existent on account of merger with another entity, is invalid: HC

++ I-T - Revised returns submitted by an assessee cannot be declined solely on grounds that the same had not been filed electronically : HC

++ I-T - Failure of AO to issue notice within the period of limitation u/s 143 (2), which is notice giving jurisdiction to the AO to frame assessment, cannot be condoned u/s 292BB: HC

++ I-T - Writ remedy cannot be invoked in respect of assessment order which contains a technical error pertaining to computation of tax payable : HC

++ I-T - Since for bogus purchases AO has already made disallowance @ 20% which is more than that held by the Jurisdictional High Court, PCIT is not correct in exercising Revisionary Jurisdiction u/s 263 :ITAT

++ I-T - Where AO has taken a view which is possible and plausible, action of AO cannot be regarded as erroneous per se : ITAT

++ I-T - For bogus purchases addition should be made only to extent of profit element and in present case such addition can be restricted to 6% : ITAT

November 29, 2021

++ I-T - If AO has considered objection raised in grounds for issuing notice u/s 148 during original assessment proceedings but has not rejected those objections, then AO is deemed to have accepted the objections : HC

++ I-T - Re-opening of assessment cannot be resorted to where there is no failure on part of assessee to make full & true disclosure of material facts: HC

++ I-T - Re-opening of assessment is not sustainable where initiated based on material already known to AO during original assessment, leading to re-assessment being based on change of opinion: HC

++ I-T - Re-opening of assessment cannot be sustained where reasons recorded by AO that taxable income has escaped assessment, are found to be incorrect : HC

++ I-T - Re-opening of assessment is unsustainable where prior approval u/s 151(2) is not obtained: HC

++ I-T - Even if observations of Apex Court are of nature of obiter, they will be binding on High Courts : HC

++ I-T - Charitable trust is eligible for provision for gratuity & leave encashment, which was applied as per objectives of trust: ITAT

++ I-T - Protective assessment is not warranted in hands of assessee when assessee has been able to discharge onus of showing nature and source of credit entries : ITAT

++ I-T- Once issue has been attained finality, no fresh adjudication is required:ITAT

November 27, 2021

++ I-T - Deduction u/s 54F is allowed to assessee where proceeds from sale of residential house being capital gains, are invested before time available u/s 139(4): ITAT

++ I-T - Appellate Authority should pass speaking order taking into consideration explanation so furnished by assessee and after providing reasonable opportunity to assessee: ITAT

November 26, 2021

++ I-T- Assessment purely based on suspicion, surmises and conjectures without any tangible evidence on record against assessee of any connivance or collusion is unsustainable in law: ITAT

++ I-T - Assessee cannot be penalised for non-deduction of TDS where the Revenue does not establish that the payment in questions attracts TDS at all : ITAT

++ I-T- Assessment order cannot be held to be erroneous simply on allegation of inadequate enquiry unless there is an established case of total lack of enquiry : ITAT

++ I-T- Bogus purchases - Additions framed should exclude VAT element; include only profit embedded in such purchases: ITAT

++ I-T - As per sec. 145, income of assessee must be computed as per method of accounting regularly employed by assessee : ITAT

++ I-T - Addition u/s 68 cannot be made based on mere assumptions and in absence of any evidence that transaction is sham or bogus : ITAT

November 25, 2021

++ I-T - Deductee is entitled to credit of tax deducted at source with respect to amount of TDS for which Form No.16A issued by employer deductor: HC

++ I-T - Delay of 1282 days in filing appeal cannot be condoned where assessee is not found to be diligent in prosecuting the lis & provides no reasonable explanation for such lapse: HC

++ I-T - Penalty u/s 271(1)(c) is to be determined based on amount of tax sought to be evaded & not total tax payable by assessee: HC

++ I-T - Purpose of construction of building for Government cannot be accepted as activity coming within meaning of advancement of any other object of general public utility: HC

++ I-T - Assessment cannot be reopened on issues which are under appeal: HC

++ I-T - PCIT can exercise revisionary jurisdiction u/s 263 where AO has not conducted proper enquiry and merely accepted returned income filed by assessee : ITAT

++ I-T - As per explanation (a)(ii) of sec. 56(2)(viib), any competent evidence that proves market value of assets is sufficient to satisfy requirements of the section : ITAT

November 24, 2021

++ I-T - Notional loss suffered on account of revaluation of stock-in-trade held by rural bank branch at close of year is allowable deduction: HC

++ I-T - Claim of assessee cannot be modified without filing revised return: HC

++ I-T - Agricultural income tax paid for apportioned agricultural income cannot overlap into business income as tax payable by assessee for earning business income: HC

++ I-T - Activity of running printing press & publishing newspaper, cannot be said to be of the nature of trade, commerce or business where such activity has no profit motive & where any profits are used for charitable purposes : HC

++ I-T - Additions framed on account of unexplained investments is unsustainable where based solely on assumptions & presumptions: ITAT

++ I-T - Since assessee is carrying on charitable activities as envisaged u/s 2 (15) , assessee is entitled for grant of registration u/s 12AA : ITAT

++ I-T - Since assessee is willing to substantiate cash payment deposited in his bank account therefore, issue relating to addition of unexplained cash is restored to file of AO : ITAT

November 23, 2021

++ I-T - Even if one of the conditions u/s 36(2)(i) is satisfied, bad debts claimed u/s 36(1)(vii) must be allowed : HC

++ I-T - Corporation incorporated under Companies Act falls within ambit of exemption envisaged u/s 10(26B), if formed to promote interests of members of backward classes: HC

++ I-T - Co-operative society, not into banking business, catering to needs of its constituent members, is entitled for deduction u/s 80P(2) : HC

++ I-T - Satisfaction for exercise of such powers must be recorded by CIT & not by ITAT : HC

November 22, 2021

++ I-T - Sale proceeds are to be received in convertible foreign exchange in India for being eligible to be considered for purposes of claiming deduction u/s 10 A: ITAT

++ I-T - Income from letting out property is classifiable under Business Income where person letting it out is engaged in sub-leasing of property & derives income from rental income ITAT

++ I-T - Delay on part of builder of new residential property, is not credible ground to deny exemption u/s 54F where proceeds from sale of old property could not be invested within statutory period of 3 years: ITAT

++ I-T - If assessee has already accounted for sales out of sundry credits, then resultant addition cannot be made in hence of assessee u/s 68: ITAT

++ I-T- For material belonging to assessee if found during course of search of third party, it is mandatory on part of AO to make assessment u/s 153C: ITAT

++ I-T - Defect in notice u/s 274 vitiates assumption of jurisdiction by AO to levy any penalty: ITAT

++ I-T- Assessee has not adopted colourable device in respect of transferring of shares, thus, action of AO in treating sale of shares as short term gains is not sustainable : ITAT

++ I-T - If no specific opportunity was communicated to assessee in order to make compliance with further information and evidences sought by AO, then such case calls for remand: ITAT

November 20, 2021

++ I-T - For purposes of reopening assessment, only true and correct state of law can form basis for reason to believe escapement of income from assessment : ITAT

++ I-T - Since Pr. CIT has taken action merely on basis of audit objection while AO made proper inquiries at time of framing assessment u/s. 143(3) r.w.s 147, assessment order cannot be said to be prejudicial to interest of Revenue: ITAT

++ I-T- In absence of any evidence to show that assessee has incurred any extravagant expenditure for maintaining a lavish life style or has performed any marriage function, addition on presumption and surmises is not sustainable in law :ITAT

November 19, 2021

++ I-T - If Revenue Department has not monetarily burdened taxpayer for FEMA violation which could have qualified as excess of jurisdiction, then same does not call for writ interference: HC

++ I-T - If any deductor has already paid fee after intimation received u/s 200A, then deductor is not permitted to reopen said question unless he has made payment under protest: HC

++ I-T- Explanatory memorandum to Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021, thus additions made u/s.36(1)(va) deserves to be deleted : ITAT

++ I-T- As there is no finding by AO suggesting that assessee has made investment out of undisclosed source for earning of gross receipts, and since gross receipt does not partake character of income, thus addition made by AO is to be deleted : ITAT

++ I-T - Disallowance of payment of PF & ESI contribution amount cannot be sustained where such payment is made before the due date of filing ITR : ITAT

November 18, 2021

++ I-T - Review petition declined where petitioner omits to establish grounds for invoking such jurisdiction: HC

++ I-T - Alternate remedy qua writ Court is self-imposed restraint and it is not absolute Rule: HC

++ I-T - Additions framed under amended provisions of Section 36(1)(va) r/w Section 43B are not tenable where relevant AY precedes year of amendment: ITAT

++ I-T - Assessee should not suffer due to non-filing of material information for reasons beyond assessee's control : ITAT

++ I-T - Order of CIT(A) in computing disallowance after excluding investments which are not related to earning of dividend income is not improper : ITAT

++ I-T - Provisions of Sec 14A or Rule 8D cannot be interpreted to mean that entire quantum of tax exempt income is to be disallowed : ITAT

++ I-T- Sec 23 - reasonable rent is to determined not exceeding standard rent fixed under rent control law: ITAT

++ I-T - Valuation report by bank for sanctioning of loan cannot solely be a ground for CIT(A) giving direction to AO u/s 150(1) to reopen assessment for another AY, not subject-matter of appeal before CIT(A) : ITAT

++ I-T - When existence of R & D facility is not disputed, merely for non-issuance of approval for certain period in prescribed Form 3CM by competent authority, weighted deduction claimed u/s 35(2AB) cannot be denied : ITAT

November 17, 2021

++ I-T - AO is statutorily obliged to educate assessee regarding possible reliefs available: ITAT

++ I-T- Since amount advanced to entities is for business purpose, therefore, entire interest paid by assessee is to be allowed as business expenditure : ITAT

++ I-T - In event of fresh material coming to light, revisional authority cannot bypass principles of natural justice to casually pre-empt assessment order to be erroneous : ITAT

++ I-T - If no addition is being made on point for which assessment has been reopened, then no other issue can be entertained, even under revisional jurisdiction u/s 263 : ITAT

++ I-T - Since assessee has failed to establish that donation given to three organizations has been incurred wholly and exclusively for purposes of business, assessee is not entitled to deduction : ITAT

++ I-T- Issues on the basis of which Pr. CIT has assumed jurisdiction u/s 263 had been considered and decided in appeal by CIT (A), therefore Pr.C IT can not exercise revisional jurisdiction on same issues : ITAT

++ I-T- Payments are made to members of assessee's society for purchase of land at arms length price, thus transaction arising out of such payment is covered u/s 13(1)(c) and 13(1)(d) : ITAT

November 16, 2021

++ I-T - Penalty proceedings cannot be initiated u/s 271AAB since assessee was not served with correct notice u/s 274 to initiate penalty proceedings :ITAT

++ I-T - In absence of any incriminating material no addition can be made where assessment has not abated : ITAT

++ I-T - For purposes of deduction u/s 10AA, telecommunication and internet user charges should be excluded both from export turnover and total turnover : ITAT

++ I-T- Assessment framed by ACIT is bad in law as he does not have any pecuniary jurisdiction to frame assessment: ITAT

++ I-T- Since assessment order is abated at time of search and there is no difference between cost of construction determined by district valuation Officer and cost of construction incurred by assessee, thus no addition requires to be made : ITAT

November 15, 2021

++ I-T - Cash credits - Onus of proving source of income does not lie with assessee more so when no causal link is established between assessee & source of income: HC

++ I-T - Writing off advance recoverable is genuine business expense allowable u/s 37(1) & cannot be treated as capital expenditure, as no benefit of enduring nature arises therefrom: ITAT

++ I-T - Since CIT (A) has just rejected evidentiary value of unregistered sale agreements without examine details submitted before it, case is to be restored to CIT (A) for afresh consideration: ITAT

++ I-T - Assessee's financial health cannot be a criterion to judge allowability of an expense :ITAT

++ I-T - Income surrendered by assessee can be treated as business income, where entries thereto are made in books of accounts; such business income can be set off against business loss: ITAT

++ I-T - Education cess being additional surcharge levied on income-tax is part of income-tax, thus education cess cannot be claimed as allowable deduction : ITAT

++ I-T - Quantum of incentives earned by a dealer may be dependent on quantum of certain sales hence, these incentives cannot be termed as commission in normal course of buying and selling goods as envisaged in section 194 H : ITAT

November 13, 2021

++ I-T - Penalty can be imposed u/s 271(1)(c) where assessee declares undisclosed foreign assets & pays tax @ 30% thereon : ITAT

++ I-T- Claim with regard to leave encashment has to be allowed on cash basis i.e. actual payment basis and not on accrual basis: ITAT

November 12, 2021

++ I-T - TDS u/s 194D is not payable where no payment is made to agent by principal: HC

++ I-T - Where AO re-opens assessment based on material which was available during original assessment, then re-assessment is deemed to be based on change of opinion & hence invalid : HC

++ I-T - Notice seeking further details, information & documents cannot be deemed to be draft assessment order: HC

++ I-T- Sum paid by assessee for approvals, licences, permits, registration to run business over and above total price of fertilizer plant are intangibles and deprecation is allowable u/s 32(l)(ii) : ITAT

++ I-T - Employees contribution of ESI being paid before due date of filing of return u/s 139(1) is entitled for deduction u/s 36(1)(va) : ITAT

++ I-T- There cannot be any reassessment proceedings on the basis of any retrospective amendment made under provisions of law : ITAT

++ I-T- Since this is a clear case of lack of inquiry by AO order passed by Pr. CIT revising assessment passed u/s 143(3) read with section 153A is completely in order: ITAT

++ I-T - Date on which AO of person other than one searched assumes possession of seized assets will be relevant date for applying provisions of sec. 153A : ITAT

++ I-T - CBDT circular dated 01.08.2012 barring allowability u/s 37 of freebies distributed to medical professionals by pharmaceutical company is effective from date on which circular was issued and not date on which MCI guidelines were amended: ITAT

November 11, 2021

++ I-T - Re-assessment order merits being quashed where it is passed without considering relevant evidence furnished by assessee to substantiate its case : HC

++ I-T - Company since merged with another loses its identity upon merger; order passed in name of such non-existent company is non est : HC

++ I-T - Company since merged with another loses its identity upon merger; order passed in name of such non-existent company is non est : HC

++ I-T - Since no enquiry is conducted to ascertain margin on sale of vehicles also books of account of assessee are not rejected thus, addition is not sustainable in law: ITAT

++ I-T - Mere activity of sale and purchase of shares, without proper evidences cannot be held to be an activity giving rise to income assessable under head income from business or profession : ITAT

++ I-T - Since in notice issued there is no specific charge relating to concealment of income or furnishing of inaccurate particulars of income, penalty levied u/s 271(1)(c) is not sustainable: ITAT

++ I-T- Since assessee has been able to explain nature and source of cash deposits in bank account, no addition u/s 68 is warranted : ITAT

++ I-T- In absence of examination of broker of assessee to determine genuineness of client code modification, action of AO cannot be upheld for reopening of assessment : ITAT

November 10, 2021

++ I-T - AO cannot impose penalty for one AY & drop penalty for the subsequent AY, based on the same set of facts, without assigning proper reasons : ITAT

++ I-T - Penalty notice issued u/s 271(1)(c) cannot be sustained where appropriate charges between concealment of income & furnishing inaccurate particulars thereof, have not been specified : ITAT

++ I-T - Penalty imposed for failure to report financial transaction sustained in part, where assessee wilfully omits to file statement, but also does not receive SCNs mentioned in penalty order: ITAT

++ I-T - Assessee is eligible to interest on refund of self-assessment tax for period beginning from date of payment of tax or filing of return, whichever is later, to date on which refund is granted : ITAT

++ I-T - AO cannot make addition u/s 68 on account of unexplained credit without issuing summons to lenders u/s 131 and conducting inquiries : ITAT

++ I-T - Interest charged for delayed payment of TDS amount to government account would not assume character of business expenditure thus, deduction u/s 37(1) in respect of interest charged is not allowable : ITAT

++ I-T- Since AO fails to strike off irrelevant default in body of show cause notice, therefore, penalty imposed by him u/s 271(1)(c) cannot be sustained and is liable to be struck down : ITAT

++ I-T - Prior to amendment brought by Finance Act 2002 w.e.f. 1.4.2003 in section 28(va), compensation received by assessee under non compete agreement being capital receipt is not taxable: ITAT

November 09, 2021

++ I-T - For purposes of making addition u/s 68, once assessee submits evidence, onus lies on Revenue to verify genuineness and creditworthiness of lender :ITAT

++ I-T - Since assessee did not to appear before Tribunal and there was no other evidence to take a contrary view, thus , order of CIT (A) in sustaining various additions is justified : ITAT

++ I-T - Since no material is found in course of search, thus addition made in order of assessment cannot be a subject matter of proceedings u/s 153A : ITAT

++ I-T - For purposes of being granted registration as a trust u/s 12A, an object beneficial to a section of public is an object of general public utility : ITAT

++ I-T- Since no interest bearing fund has been used for purpose of making advance, no occasion arises, therefore, for making any disallowance of interest u/s 36(1)(iii) : ITAT

++ I-T- AO after considering factual and legal position accepted claim of assessee, therefore it is not a case of lack of inquiry, thus, it cannot be said that assessment order passed in a routine and per functionary manner : ITAT

November 08, 2021

++ I-T - Provisions of Ss 207 & 208 pertaining to advance tax liability & conditions for payment thereof, are inclusive & are applicable independent of each other: ITAT

++ I-T - If assessee receives income out of investments with co-operative society, same is entitled to deduction u/s 80P(2)(d), matter restores to file of AO to examine claim of deduction u/s 80P(2)(d) afresh : ITAT

++ I-T - Period of limitation provided u/s 263(2) would begin to run from date of assessment order and not from date of order of reassessment : ITAT

++ I-T - Invalidity of primary proceedings for lack of jurisdiction can be challenged in appellate proceedings arising out of a collateral proceeding : ITAT

++ I-T - Reopening of assessment u/s 147 on basis of change of opinion by AO on same set of facts is not permissible by law : ITAT

++ I-T - Adjustment of advances against receivables does not lead to cessation of liability: ITAT

++ I-T - In case of completed assessment, no addition can be made in absence of any incriminating material : ITAT

++ I-T- When respective payees has taken into account amounts in question in respective returns of income filed u/s 139 and has subjected the same to tax, then as per the '2nd proviso' to Sec. 40(a)(ia), no disallowance of amounts would be warranted in the hands of the assessee : ITAT

November 06, 2021

++ I-T - When audited financials of assessee company have been accepted by AO, mechanical application of Rule 8D to reject suo motu  disallowance u/s 14A by assessee is not sustainable: ITAT

++ I-T - Depreciation has to be allowed on the w.d.v. of block of Machinery at gross value without reducing waiver of loan therefrom : ITAT

++ I-T- Mere absence of supporting documentation cannot be a reason to make addition u/s 69A especially where assessee has explained and duly disclosed source of deposits in bank account : ITAT

November 05, 2021

++ I-T - No reasons furnished by assessee for not submitting reply to SCN; assessment order sustained: HC

++ I-T - TDS u/s 194H is not to be deducted in respect of any transaction with occurs between parties having a principal-to-principal relation : HC

++ I-T- Employee's contribution towards ESI and PF being paid before due date of filing of return of income u/s 139(1), no disallowance is required to be made: ITAT

++ I-T- Since appeal in paper form is already with CIT(A), therefore in that eventuality CIT(A) ought not to have dismissed appeal solely on ground that assessee has not filed appeal electronically before appellate Commissioner : ITAT  

++ I-T - Penalty u/s 271(1)(c) can be sustained where it is imposed under both charges of concealment of income as well as furnishing inaccurate particulars of income & where inapplicable charge is not struck off : ITAT

++ I-T - Where assessee earns income from letting out properties, then same constitutes its main business and income so derived would be business income of assessee : ITAT

November 03, 2021

++ BMA - Bank A/c which not existed at time of coming into force of provisions of Black Money Act, can be treated as 'undisclosed asset' and be brought to tax under this legislation: ITAT

++ I-T - Provisions of Sec 153A do not enable AO to frame assessment in an arbitrary manner, without nexus or relation to material seized in course of search operations : HC

++ I-T - Finance charges usually debited by bank directly to account of account holder cannot be construed as been incurred only towards specific project: HC

++ I-T - Surplus as per shareholders account should be credited with surplus in policy holders account for determining profit u/s 44, in case of life insurance business: HC

++ I-T - Liability to deduct tax u/s 194C would arise only if payment of land acquisition was made towards service charges by assessee which attracts tax liability: HC

++ I-T - Notice issued u/s 153C without jurisdiction, renders all further proceedings as void ab initio: HC

++ I-T - Writ jurisdiction cannot be availed where assessee also has appellate remedy available: HC

November 02, 2021

++ I-T- As sessee is responsible to pay consideration for his share in property, there is no requirement to deduct tax at source in terms of section 194IA, therefore, demand u/s 201(1) and 201(IA) is to be set aside : ITAT

++ I-T- Since donation given by assessee was never to a trust registered u/s 12AA and 80G, no deduction can be granted u/s 35(1)(ii): ITAT

++ I-T- Assessment framed in absence of service of notice u/s 143(2) within specified period provided u/ s 143 (2)(i) is invalid:ITAT

++ I-T - If notice issued u/s 274 does not specify offence committed by assessee, thus penalty levied u/s. 271(1)(c) is to be deleted : ITAT

++ I-T - Merely because assessee has claimed expenditure which is not sustainable in law by itself will not amount to furnishing of inaccurate particulars to attract the penalty u/s. 271(1)(c ) : ITAT

++ I-T- All particulars of income are disclosed but assessee fails to act accordingly while computing return of income thus, bona fide mistake on part of assessee not to attract levy of penalty : ITAT

++ I-T- In absence of service of notice u/s 148, assessment framed u/s 147 is without jurisdiction and void ab initio: ITAT

++ I-T - There is no concept of deferred revenue expenses in I-T Act & hence revenue expenses incurred in earlier year cannot be allowed as deduction during current AY : ITAT

++ I-T - Power of rectification u/s 254 can be exercised only in respect of mistakes apparent on record & not those mistakes which are required to be established by argument or long-drawn reasoning : ITAT

November 01, 2021

++ I-T - Deduction claimed u/s 80HHE cannot be denied on the ground that assessee has no previous experience and expertise in the business : HC

++ I-T - Genuine Hardship u/s 119(2)(B) of I-T Act should be construed liberally: HC

++ I-T - Loss suffered by assessee on account of foreign exchange difference as on date of balance sheet is an item of expenditure u/s 37(1) : HC

++ I-T - 517-day delay in filing appeal is condoned where applicant furnishes sufficient reasons to explain such delay & where the applicant is not found to have acted with any mala fide intention: ITAT

++ I-T - Is sue of disallowance u/s 80-IA needs reconsideration as lower authorities have not verified aspect that claim for adjustment of interest can be allowed when there is inexplicable link between interest income earned and corresponding interest paid :ITAT

++ I-T- When assessee's primary business is purchasing FDRs for availability of easy funds for smooth functioning of business, interest earned on FDRs on funds invested from business funds is business income that should be allowed : ITAT

++ I-T- Expenses incurred on registration of property, conversion, stamp duty and professional fee fall under cost of improvement that must be allowed : ITAT

++ I-T- Provisions u/s 145(3) are attracted when AO has proved that assessee's accounts cannot be accepted as correct or complete : ITAT

++ I-T - Penalty notice issued u/s 271(1)(c) r/w Sec 274 is unsustainable where it does not mention specific charge against assessee between concealment of income or furnishing inaccurate particulars of income : ITAT