----- Forwarded Message -----
From: Kapil Goel <advocatekapilgoel@gmail.com>
To: CA.KAPIL GOEL <kapilnkgoelandco@gmail.com>
Sent: Tuesday, 16 July 2013 11:48 AM
Subject: [Gzb_CA Group -CA. VINAY MITTAL] Fwd: Andhra Pradesh High Court on Straight service by Affixture of Jurisdictional Notice Held Bad; Concealment Penalty Malafide intention to be proved; TDS payments to non taxable entity & tds credit issue; Hospital payment to doctors TDS issue;
From: Kapil Goel <advocatekapilgoel@gmail.com>
To: CA.KAPIL GOEL <kapilnkgoelandco@gmail.com>
Sent: Tuesday, 16 July 2013 11:48 AM
Subject: [Gzb_CA Group -CA. VINAY MITTAL] Fwd: Andhra Pradesh High Court on Straight service by Affixture of Jurisdictional Notice Held Bad; Concealment Penalty Malafide intention to be proved; TDS payments to non taxable entity & tds credit issue; Hospital payment to doctors TDS issue;
Included In this update
a) Andhra Pradesh High Court on First and Straight service by affixture BAD in law;
b) Andhra Pradesh High Court on TDS CREDIT to individual coowners where certificate in name compendious and NO tds for Not taxable entity
c) Andhra Pradesh high court on TDS on doctors payments by hospital SALARY vs Professional payment
d) Andhra Pradesh high court on Concealment penalty
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
Smt. G. Narayanamma
I.T.T.A. No. 218 of 2013
DATE: 09.07.2013
This appeal is sought to be admitted on the following suggested question of law.
Whether on the facts and circumstances of the case, the Appellate Tribunal is justified in directing that the TDS certificate standing in the name of Gunampally Sadan and not in name of the assessee should be given credit for the assessee herein?
We are of the view that the aforesaid question involves question of fact and law and the learned Tribunal has held that Gunampally Sadan is nothing but a compendious name given to the nine co-owners and it is neither an entity, much less a taxable entity under the Act. In view of the aforesaid fact finding, the payment made towards tax deduction at source (TDS) should not have been made and the same, if at all required, should have been issued in the individual name. The Tribunal has also recorded that there has been no objection to this insignificant technical deviation for so many years in the past.
In view of the aforesaid findings of the learned Tribunal, we dismiss the appeal.
M/s. Yashoda Super Speciality Hospital, IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD I.T.T.A. No. 196 OF 2013
AT HYDERABAD I.T.T.A. No. 196 OF 2013
The whole issue involved in this matter is whether the doctors are employees of the assessee or not, if so, payment made to the doctors are treated to be salaries so as to attract the provisions of Sec. 192 of the Income Tax Act.
Learned Tribunal as well as the Commissioner of Income Tax (Appeals), on fact and on examining the document – agreement of engagement of the consultant doctors by the assessee, found that there is no relationship of employer and employee. After examining the agreement and various terms and conditions, it was found that the doctors are not administratively controlled or managed by the assessee and they are free to come at any point of time as far as their attendance is concerned and treat the patients. In the agreement, there is no provison for payment of any provident fund and gratuity. The only clause in the agreement is that the doctors cannot take up any other assignment. Reading the agreement as a whole, both the authorities below observed that the existence of one prohibitory clause, as stated above, does not change the basic character of the relationship between the assesseeand the doctors concerned. On fact, the Tribunal found that there is no employer and employee relationship and their payment cannot be treated to be salaries and, as such, deduction cannot be made under Sec.192 of the Income Tax Act. We are of the view that the application of law depends upon the appreciation of facts. This court in exercise of the jurisdiction under Sec. 260A of the Income Tax Act, cannot re-appreciate the facts or substitute its own appreciation when appreciation of facts of both the authorities below was found to be rational and possible on given fact. The appreciation reached by both the authorities below has to be accepted by this court. On the given facts, this court can only examine whether the law has been applied properly or not. On careful reading of the impugned judgment and order, we are of the view that the law has been correctly applied. Therefore, we do not find any question of law involved in this matter.
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
AT HYDERABAD
Malpani & Co I.T.T.A.No.212 of 2013 DATED: 5.7.2013
By the impugned judgment and order, the learned Tribunal has been pleased to set aside the levy of penalty. The learned Tribunal while passing the impugned judgment and order, has followed the decision of the Supreme Court in the case of K.C. Builders vs. C.I.T. (Asst.) reported in [2004] 265 ITR 562. The Supreme Court in that case, interpreted the word 'concealment' and found that there should be an element of mala fide intention to conceal a particular source of income.
In this case, the learned Tribunal has found that there was no mala fide intention to conceal any income. The assessee claimed deduction of Sales Tax inadvertently or incorrectly. The explanation of the assessee was accepted by the learned Tribunal to be satisfactory. We are in agreement with the learned Tribunal that mere claim of the assessee due to inadvertence and accident, cannot be visited with penalty.
Therefore, we do not find any flaw in the judgment of the learned Tribunal
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
AT HYDERABAD
M/s Arpitha Constructions, I.T.T.A.No.144 of 2013 Date: 28.06.2013
We have heard the learned Counsel for the appellant and gone through the impugned judgment and order.
The learned Tribunal by the impugned judgment and order set aside the proceedings initiated under Section 271 (1) ( c ) of the Income Tax Act. The learned Tribunal after analyzing the fact came to the conclusion that there was no concealment on the part of the respondent/assessee. The relevant fact-findings of the learned Tribunal read as under:
"After examining the material available and the books of accounts filed by the assessee, the assessing officer accepted the income returns in the revised returns with minor addition towards some interest income and initiated penalty proceedings under Section 271 (1) ( c ) of the Act. The assessing officer did not find out any specific omission or concealment either at the time of survey or at the time of assessment proceedings."
The aforesaid Section clearly shows that penalty proceedings can be initiated on various grounds. In this case, during the course of survey proceedings or subsequent to the proceedings, the assessing officer did not find out any specific concealment. When on fact it was found that there was no concealment on the part of the respondent/assessee, initiation of proceedings of penalty under the aforesaid Section is without jurisdiction. The learned Tribunal has correctly held the legal position. Therefore, we affirm the order of the learned Tribunal.
Ch.Mohan Rao Date: 28.06.2013 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
The Revenue wanted to reopen the assessment and sought for service of notice under Section 148 of the Income Tax Act. The notice was purported to have been served on the assessee by affixture. The learned Tribunal held that service of notice under Section 148 of the Act by way of affixture is not a proper service of notice, and without there being any service by ordinary mode, the substituted service should not be allowed. Learned Counsel for the appellant submits that the service of notice is a valid one by virtue of Section 292BB of the Income Tax Act. The learned Tribunal has considered the aforesaid provision of Section 292BB of the Act and held, in our view, correctly that the said provision is applicable in relation to the original assessment. When the assessee appeared, on receipt of notice, it is not applicable in the case of service of initial notice. We are in agreement with the learned Tribunal that the mode of service by way of affixture in this case, at the first instance, was not justified. As such the proceedings drawn up under Section 148 of the Act is without serving any notice or an opportunity of being heard to the assessee. Therefore, we are not inclined to interfere with the judgment and order of the learned Tribunal.
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