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S. 254/ 36(1)(vii): If the AO has failed to discharge his obligation to conduct a proper inquiry, it is the obligation of the ITAT to ensure that effective inquiry is carried out. The AO has not examined the crucial aspect whether the bad debts claimed by the assessee due to the NSEL scam constitutes a "speculative transaction" u/s 43(5) and whether Explanation to s. 73(1) applies
Omni Lens Pvt. Ltd vs. DCIT
(2018) TaxCorp(LJ) 16011 (ITAT-AHMEDABAD) · Sections 36(1)(vii), 254
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S. 220(6)/ 246: The AO is not justified in insisting on payment of 20% of the demand based on CBDT's instruction dated 29.02.2016 during pendency of appeal before the CIT(A). This approach may defeat & frustrate the right of the assessee to seek protection against collection and recovery pending appeal. Such can never be the mandate of law
Bhupendra Murji Shah vs. DCIT
(2018) TaxCorp(LJ) 16010 (HC-BOMBAY) · Sections 220(6), 246
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Transfer Pricing: The categorical finding of fact by the ITAT that a comparable (Motilal Oswal) is engaged in a qualitatively different and diversified business than that of the assessee cannot be challenged as a substantial question of law as the finding is not perverse or vitiated by any error apparent on the face of the record
PCIT vs. NVP Venture Capital India Pvt. Ltd
(2018) TaxCorp(LJ) 15985 (HC-BOMBAY)
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S. 254(2): We are at a loss to understand why the ITAT has not communicated a date of hearing of the Miscellaneous Application (MA). The ITAT should give priority to the hearing of MAs. It should assign specific dates of hearing and inform parties well in advance. The ITAT should set right the lapses and put its house in order. None should be compelled to move the High Court and seek an out of turn hearing
Lupin Investments Pvt. Ltd vs. ITAT
(2018) TaxCorp(LJ) 15984 (HC-BOMBAY) · Section 254(2)
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Art 226: If an assessee obtains an order from the Court that the Dept should refund the seized amount but does not take steps to enforce the order beyond the period of limitation, he is guilty of laches and negligence. He is not entitled to file another Writ for enforcement of the earlier order. Such a litigant does not deserve any relief in the discretionary and equitable jurisdiction of the High Court
Kishore Jagjivandas Tanna vs. JDIT
(2018) TaxCorp(LJ) 15983 (HC-BOMBAY)
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S. 148: A notice u/s 143(2) issued by the AO before the assessee files a return of income has no meaning. If no fresh notice is issued after the assessee files a return, the AO has no jurisdiction to pass the reassessment order and the same has to be quashed
Sudhir Menon vs. ACIT
(2018) TaxCorp(LJ) 15966 (ITAT-MUMBAI) · Sections 143(2), 148
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S. 68 Bogus share capital: The ITAT is an adjudicator and not an investigator. It has to rely upon the investigation / enquiry conducted by the AO. The Dept cannot fault the ITAT's order and seek a recall on the ground that an order of SEBI, though available, was not produced before the ITAT at the hearing. The negligence or laches lies with the Dept and for such negligence or laches, the order of the ITAT cannot be termed as erroneous u/s 254(2)
ITO vs. Iraisaa Hotels Pvt. Ltd
(2018) TaxCorp(LJ) 15965 (ITAT-MUMBAI) · Sections 68, 254(2)
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ITAT - No TDS u/s. 194H applicable on discounts given on sale of Set Top Boxes and recharge vouchers.
Tata Sky Limited Vs Asst. CIT (TDS)
(2018) TaxCorp(LJ) 15959 (ITAT-MUMBAI) · Section 194H
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S. 68 Bogus share capital: If (a) the assessee has furnished the Name, Address, PAN no and Share Application Form to prove that the shares were allotted to the applicants and (b) the bank statement show that money was received through banking channels and there were no immediate withdrawals to suggest that the share application amounts have been returned back to these parties in cash, it means the assessee has discharged the primary onus cast upon it to prove the identity, capacity and genuineness of transactions
Sunshine Metals & Alloys vs. ITO
(2018) TaxCorp(LJ) 15931 (ITAT-KOLKATA) · Section 68
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S. 147/ 92: The information given by DIT (Inv) can only be a basis to ignite/ trigger "reason to suspect". The AO has to carry out further examination to convert the "reason to suspect" into "reason to believe". If the AO acts on borrowed satisfaction and without application of mind, the reopening is void (All judgements considered)
Devansh Exports vs. ACIT
(2018) TaxCorp(LJ) 15930 (ITAT-KOLKATA) · Sections 92, 147
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Reverses HC; Assessee not 'local authority' post 2002 amendment; Denies exemption u/s 10(20)
THE INCOME TAX OFFICER Vs URBAN IMPROVEMENT TRUST
(2018) TaxCorp(LJ) 15923 (SC) · Section 10(20)
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S. 10(20) Interpretation of statutes: Law on whether "functional test" as laid down in UOI vs. R.C. Jain, (1981) 2 SCC 308 is still good law explained in the context of whether the statutory functions conducted by a municipal committee enables it to qualify as a 'local authority'
ITO vs. Urban Improvement Trust
(2018) TaxCorp(LJ) 15919 (SC) · Section 10(20)
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S. 197 TDS: No functionary other than the officer referred to in the relevant statutory provision, namely section 197 and Rule 28AA of the Income Tax Rules, 1962, is permitted to take over the jurisdiction or interfere in the exercise of the discretionary power envisaged by this statutory provision. The concerned official has to record his satisfaction while issuing the TDS certificate
TLG India Private Limited vs. JCIT
(2018) TaxCorp(LJ) 15918 (HC-BOMBAY) · Section 197
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Search assessments. The time limit of 2 years u/s 153B for framing search assessment orders applies only to the original order and to orders passed after remand. The time limit for passing remand orders is governed by s. 153(3)/ erstwhile 153( 2A) & not by s. 153B. Limitation begins (for any purpose under the Act) from the point of time when the departmental representative receives the copy of a decision or an order of the ITAT
Surendra Kumar Jain vs. PCIT
(2018) TaxCorp(LJ) 15917 (HC-DELHI) · Sections 153(3), 153( 2A), 153B
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S. 23(1)(b), 50C: Law explained on (i) whether notional interest on interest-free security deposit can be added while computing annual value u/s 23(1)(b) & (ii) whether the interest-free security deposit can be treated as 'full value of consideration' u/s 50C as it was included in 'assessable value' by the Stamp Duty Valuation Authority
DCIT vs. Moni Kumar Subba
(2018) TaxCorp(LJ) 15916 (ITAT-DELHI) · Sections 23(1)(b), 50C
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S. 271C & 206AA Penalty: The assessee has made out a prima facie case that the outcome of the appeal before the ITAT will directly impact the penalty proceedings which are hurriedly being finalized by the authorities which may entail huge liability by way of penalty on the assessee. The Revenue authorities are accordingly restrained from passing any order imposing penalty on the assessee so long as the appeal is pending before the Tribunal (Wander 44 Taxman.com 103 (Bom) & GE India Technology 46 Taxmann.com 374 (Guj) followed)
Uber India Systems Pvt. Ltd vs. JCIT
(2018) TaxCorp(LJ) 15909 (ITAT-MUMBAI) · Sections 271C, 206AA
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S. 80-IC: Law on whether "assembly" constitutes "manufacture" explained in the context of several judgements. Allegation of the Dept that manufacture is not possible as the assessee has less number of employees, no sophisticated machinery and less electricity consumption considered
ITO vs. Sudarshan R. Kharbanda
(2018) TaxCorp(LJ) 15908 (ITAT-MUMBAI) · Section 80-IC
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Prosecution u/s 276-C/277: S. 278E carves out an exception to the rule of mens rea. The burden of proving the absence of mens rea is upon the accused. The absence needs to be proved not only to the basic threshold of “preponderance of probability” but “beyond reasonable doubt”. In every prosecution case, the Court shall always presume culpable mental state and it is for the accused to prove the contrary beyond reasonable doubt. This presumption is a rebuttable one
Arun Arya Vs. ITO
(2018) TaxCorp(LJ) 15907 (HC-J&K) · Sections 276-C, 277, 278E
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S. 68 Bogus share capital: Failure by the AO to offer cross-examination of the persons whose statements are relied upon means that no adverse inference can be drawn against the assessee. Dept's plea for a remand is not acceptable if the assessee has discharged primary onus (Nova Promoters 342 ITR 169 (Del) & Jansampark Advertising 375 ITR 373 (Del) distinguished). Paradise Inland 98 CCH 0417 followed
Rajat Exports Import (India) Pvt. Ltd vs. ITO
(2018) TaxCorp(LJ) 15901 (ITAT-DELHI) · Section 68
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S. 147: The computation of income is the basic document for making the s. 143(3) assessment. If there is a disclosure in the computation, it leads to the prima facie necessary inference that there is application of mind by the AO. The fact that the AO did not raise specific queries & is silent in the assessment order does not mean there is no application of mind (Techspan 404 ITR 10(SC) followed, other contra judgements distinguished)
State Bank Of India vs. ACIT
(2018) TaxCorp(LJ) 15900 (HC-BOMBAY) · Section 147
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