----- Forwarded Message -----
From: Kapil Goel <advocatekapilgoel@gmail.com>
To: CA.KAPIL GOEL <kapilnkgoelandco@gmail.com>
Sent: Tuesday, 4 June 2013 11:29 AM
Subject: [Gzb_CA Group -CA. VINAY MITTAL] Hyd BENCH ITAT orders: No Concealment penalty for income disclosure post Survey u/s 139(4) belated ROI/ITR ; Unsigned incriminating Trial balance can't be sole basis to infer Undisclosed income; Ru;e 46A CIT-A rightly admitting evidence where AO non responding ; TDS related disallowance alleged commission payment Vs. agreement to sale on principal basis; Vegetable/fruit Vendors business head expense
From: Kapil Goel <advocatekapilgoel@gmail.com>
To: CA.KAPIL GOEL <kapilnkgoelandco@gmail.com>
Sent: Tuesday, 4 June 2013 11:29 AM
Subject: [Gzb_CA Group -CA. VINAY MITTAL] Hyd BENCH ITAT orders: No Concealment penalty for income disclosure post Survey u/s 139(4) belated ROI/ITR ; Unsigned incriminating Trial balance can't be sole basis to infer Undisclosed income; Ru;e 46A CIT-A rightly admitting evidence where AO non responding ; TDS related disallowance alleged commission payment Vs. agreement to sale on principal basis; Vegetable/fruit Vendors business head expense
Gist of the orders
- Hyd bench ITAT on concealment penalty section 271(1)(c) post survey in 139(4) belated return; (onus on revenue)
- Hyd bench ITAT on CIT-A rule 46A addition evidence rightly admitted where AO not responding
- Hyd bench ITAT on survey based addition on basis on UNSIGNED trial balance disclosing higher receipts onus on revenue
- Hyd bench ITAT TDS disallowance on presumed commission expense (194H and section 40(a)(ia))
- Hyd bench ITAT vegetable sellers expense allowance section
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD "B" BENCH, HYDERABAD M/s. Sri Lakshmi Gayatri Hotels Pvt. Ltd 31- 5-2013 As appears from the order passed u/s 271 (1) (c ) of the Act, the penalty has been imposed by the Assessing Officer only on a presumption that because of the survey operation, the assessee filed its return of income or paid tax due or otherwise the assessee would not have filed its return of income. However, such finding only on presumption has no basis and is not legally sustainable. Though the assessee may not have filed the return of income within the due date u/s 139(1) of the Act but certainly it has filed the return within the time permitted u/s 139(4) of the Act and the return is a valid return. The Assessing Officer must establish the fact on record that there is a conscious attempt on the part of the assessee to conceal his income or furnish inaccurate particulars of income before imposing penalty u/s 271(1)(c ) of the Act. As can be seen the Assessing Officer while completing the assessment order has
accepted the income declared by the assessee excepting for certain
disallowances. It is also not the case of the department that the assessee had filed the return only after certain incriminating materials were recovered from him or after issuance of notice u/s 142(1) or 148 of the Act. Therefore, considering the totality of facts and the circumstances of the case, the assessee cannot be
accused of concealing his income to be visited with penalty u/s 271(1)(c ) of the Act. Accordingly, we do not find any infirmity in the order of the CIT (A) which is sustained. Hence, the grounds raised by the department are dismissed
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH 'B', HYDERABAD M/s. Kedia Overseas LimitedITA Nos. 396 &397/Hyd/11,1691/Hyd/10
Asstt. Years : 2004-05,2006-07 & 2005-06 So far as the contention of the learned Departmental Representative that the CIT (A) has considered additional evidence in violation of Rule 46A is concerned, we do not find any merit in it. It is evident from the order of the CIT (A) that in course of the appeal proceeding the CIT (A) in fact had sought the comments of the Assessing Officer on the issue but the Assessing Officer did not respond to it. In aforesaid view of the
matter, we do not find any infirmity in the order of the CIT(A) and
uphold the same. Grounds raised by the department are dismissed
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH 'B', HYDERABAD Sri N. Narasimha Reddy, ITA No. 255/Hyd/12 Asst. Year: 2008-09 22-05-2013 We find that the Assessing Officer made the addition of Rs. 45,63,331/- on account of suppressed contract receipts based on the trial balance found in the course of survey u/s 133A. On perusal of the assessment order it is further evident that apart from the trial balance there is no other material on record before the Assessing Officer to indicate that the assessee had actually
received the amount of Rs. 45,63,311 towards the alleged construction receipts. The Assessing Officer had neither conducted any enquiry nor made any effort to establish the fact by bringing material on record that the amount shown in the trial balance was actually received by the assessee. When the assessee has maintained regular books of account and has submitted audited statement of accounts the same cannot be disbelieved without bringing cogent evidence on record to prove them wrong. No addition can be made merely on the basis of the
trial balance which by its very nature is not final. That besides the trial balance found during the survey being unsigned one no importance can be attached to such a document when the assessee has submitted audited P&L account and balance sheet, which cannot be discarded unless there is strong evidence to
prove them wrong. After considering the totality of the facts and circumstances of the case, we do not find any reason to interfere in the order of the CITCA) in deleting the addition of Rs. 45,63,311/- made by the Assessing Officer on account of suppressed receipts and, therefore, the order of the CITCA) is
hereby upheld on this count. Accordingly, the grounds raised by
the revenue are dismissed.
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH 'B', HYDERABAD ITA No.292/Hyd/13 s. NMDC Limited, Hyderabad 31.05.2013 On the reason that the assessee was exporting the iron ore through MMTC, another government organisation and on the basis of statements of some personnel of
MMTC, Assessing Officer estimated 2.8% of the sales declared by the MMTC as commission payable and since assessee has not deducted tax on the so called commission, Assessing Officer disallowed the quantified amount under S.40(a)(ia) of the Act. Consequent to the order of the ITAT, Visakhapatnam in assessee's own case in the proceedings initiated on the same issue under S.201 and S.201(1A),
the learned CIT(A) deleted the said disallowance. Revenue is aggrieved. It is very pertinent to note that the Learned –CIT(A) has noted the fact that the assessee has routed the transaction of export through MMTC only because the assessee was not allowed to effect the export on account of Government regulations. It is the most striking feature in the impugned
transactions which was not at all considered by the tax authorities. By virtue of the Government
regulations, both the companies had to reach an agreement with regard to the modalities of the incurring expenses and payment and in our opinion, the said modalities of payment are
not the deciding factor to determine the nature of transaction. In view of the foregoing, we set aside the orders of the Ld. CIT(A) as well as that of the Assessing Officer . Since we have decide d the first issue in favour of the assessee, the second issue urged by the assessee becomes infructuous." Respectfully following the decision, we hold that since the assessee is not entitled to export directly and export by the MMTC was on principal-principal basis, there can be no commission payment to MMTC, as such the question of sustaining the order of the Assessing Officer in estimating the commission and disallowing the same under S.40(a)(ia) does not arise. Infact there is no claim of commission by assessee. So question of deduction of tax does not arise and consequently disallowance u/s 40(a)(ia). Accordingly, the order of the CIT(A) is upheld and Revenue's ground on this issue is rejected.
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH "A", HYDERABAD Shri Y. Jaya Prakash ITA No. 1693/HYD/2012
Assessment Year: 2009-10 10/05/2013We find that the assessee's nature of business is selling fruits and vegetables and buying from the farmers directly and
transported in tractors in smaller units, pooled from various places and dispatched in bulk to various places. We confirm the Order of the CIT(A) in adopting the percentage of margin at 4% for the following reasons : The customary practice predominantly present is cash and carry basis, without any formal bills and therefore, it is only a matter of estimate which can be adopted. The assessee has adopted net profit which comes to about 2% of gross turnover. However, it seems to be very low and 4% can be a reasonable amount of profit in such trade.
2. The fruits being perishable in nature, the assessee at most of the times have to dispose off the goods on lower rates and also some times has to throwaway.
Hence, the profit margin cannot be as high as 8%. 3. The fruits business is highly competitive in nature and based on the prevailing market rates, the assessee has
to sell the goods with lower margins. Hence, the CIT(A) holding the percentage of margin at 4% is justified. 4. Some times, due to crop failure, the assessee has to loose the advances given to the farmers, which reduces the profit of the assessee.
5. Hence, the assessee has to correlate the mode of transport and the transporter fixes the rates at the eleventh hour based on the availability / demand, they Charge higher rates. The activity being predominantly
labour oriented, expenditure like food during loading and unloading and also expenditure appealing to their habits has to be incurred. Hence, expenditure has to be necessarily incurred.
6. Wastage due to degrading, rotten, quantity discounts, freebies, take home goodwill gestures, fluctuations in rates etc., would cumulatively eat away margins. In case of packing materials, most of the time, gunnies
etc., are purchased from unorganized dealers, farmers and at times reimbursed to hamalies.
7. To conclude, production of bills and vouchers is highly impractical in this line of activity and the factors which have an impact on the profit has been discussed in
point no.1 to 6 above. Hence, in our opinion, the percentage of profit is to be treated at 4% is reasonable and hence, we confirm the Order of the
CIT(A). 12. In the result, appeal of the revenue is dismissed
__._,_.___
No comments:
Post a Comment