Hafeez S. Contractor vs. ACIT (ITAT Mumbai)
| COURT: | ITAT Mumbai |
| CORAM: | B. R. Baskaran (AM), Joginder Singh (JM) |
| SECTION(S): | 271(1)(c) |
| GENRE: | Domestic Tax |
| CATCH WORDS: | concealment of income, furnishing inaccurate particulars of income, penalty |
| COUNSEL: | Neelkanth Khandelwal |
| DATE: | September 2, 2015 (Date of pronouncement) |
| DATE: | October 12, 2015 (Date of publication) |
| AY: | 2007-08, 2008-09 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 271(1)(c): If the notice does not clearly specify whether the penalty is initiated for "concealment" or for "filing inaccurate particulars", it is invalid. Mere fact that assessee has surrendered income does not justify penalty if his explanation is not found to be false/ not bona fide | |
(i) The notice issued by the AO u/s 274 read with section 271 of the Act at the time of initiation of penalty proceedings states that it is issued for "concealment of particulars of income or furnishing of inaccurate particulars of income". The assessing officer has not specified that as to which limb the notice was issued, i.e., whether it is issued for concealment of particulars of income or furnishing of inaccurate particulars of income. The assessing officer should be clear about the charge at the time of issuing the notice and the assessee should be made aware of the charge. The penalty order is liable to be quashed as the AO has not correctly specified the charge (decision dated 11.10.2013 in Shri Samson Perinchery in ITA No.4625 to 4630/M/2013 and CIT Vs. Manjunatha Cotton & Ginning Factory (2013)(35 Taxmann.com 250)(kar dated 13.12.2012) followed)
(ii) Surrender of commission expenditure would not automatically lead to the malafides of the assessee as presumed by the assessing officer, since the assessing officer has not afforded an opportunity to the assessee to contradict the documents that were relied upon by the AO. If we examine the explanations furnished by the assessee in terms of Explanation 1 to sec. 271 of the Act, we notice that the assessee has offered an explanation and the same has not been found to be false. It is pertinent to note that the revenue was having only suspicion about the genuineness of the payments at the time of search proceedings on the basis of enquiries conducted by them. However, the assessee has all through maintained that the payments were genuine. In support of the same, the assessee has stated that the payments were made by way of cheque, TDS were deducted and the service tax was also paid. Hence, in our view, it cannot be said that the explanation of the assessee was found to be false. Though the AO has expressed the view that the admission of the assessee proves malafides, we are of the view that the explanation of the assessee was not proved to be not bonafide one. It is not the case of the assessing officer that the assessee has failed to furnish all facts and material relating to computation of income. Accordingly, we are of the view the deeming provisions of Explanation-1 shall also not apply to the assessee.
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 | Hafeez S. Contractor vs. ACIT (ITAT Mumbai)by editor |
The notice issued by the AO u/s 274 read with section 271 of the Act at the time of initiation of penalty proceedings states that it is issued for "concealment of particulars of income or furnishing of inaccurate particulars of income". The assessing officer has not specified that as to which limb the notice was issued, i.e., whether it is issued for concealment of particulars of income or furnishing of inaccurate particulars of income. The assessing officer should be clear about the charge at the time of issuing the notice and the assessee should be made aware of the charge. The penalty order is liable to be quashed as the AO has not correctly specified the charge
editor | October 12, 2015 at 9:32 am | Categories: All Judgements, Tribunal | URL: http://itatonline.org/archives/?p=11648
| Comment | See all comments |
Pr. CIT vs. E-Funds International India Pvt Ltd (Delhi High Court)
| COURT: | Delhi High Court |
| CORAM: | S. Muralidhar J, Vibhu Bakhru J |
| SECTION(S): | 10A, 80HHE |
| GENRE: | Domestic Tax |
| CATCH WORDS: | deduction |
| COUNSEL: | Piyush Kaushik |
| DATE: | October 6, 2015 (Date of pronouncement) |
| DATE: | October 12, 2015 (Date of publication) |
| AY: | 2002-03 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 10A/ 80HHE: Claiming deduction u/s 80HHE for one year does not debar the assessee from claiming deduction u/s 10A for another year. Fact that claim is not made via a revised return is no bar on the right of the appellate authority to consider it | |
(i) While an AO may not be entitled to grant a deduction or an exemption on the basis of a revised computation of income, there was no such fetter on the appellate authorities. This was recently reiterated by this Court in a decision dated 25th August 2015 in ITA No. 644/2015 (Pr. Commissioner of Income Tax-09 v. Western India Shipyard Limited). In Commissioner of Income Tax v. Sam Global Securities Ltd. (2014) 360 ITR 682 (Del), this Court pointed out that the power of the Tribunal in dealing with appeals was expressed in the widest possible terms and the purpose of assessment proceedings was to assess the correct tax liability. The Court noted that "Courts have taken a pragmatic view and not a technical view as what is required to be determined is the taxable income of the Assessee in accordance with law." In M/s. Influence v. Commissioner of Income Tax 2014-TIOL-1741-HC-DEL-IT a similar approach was adopted when the AO in that case refused to accept the revised computation submitted beyond the time limit for filing the revised return under Section 139(5) of the Act. This Court noted that the decision in Goetze (India) Ltd. v. Commissioner of Income-Tax [2006] 284 ITR 323 (SC) "would not apply if the Assessee had not made a new claim but had asked for re-computation of the deduction." (Commissioner of Income Tax v. Jai Parabolic Springs Ltd. (2008) 306 ITR 42 and the decision of Bombay High Court in Commissioner of Income Tax v. Pruthvi Brokers & Shareholders (P) Ltd. (2012) 349 ITR 336 (Bom) referred);
(ii) Making of a claim under Section 80HHE of the Act in one assessment year will not preclude an Assessee from claiming the benefit under Section 10A of the Act in respect of the same unit in a succeeding assessment year. The purpose of the Section 80HHE(5) of the Act was to avoid double benefit but that would not mean that if for a particular assessment year the Assessee wants to claim a benefit only under Section 10A of the Act and not Section 80HHE, that would be denied to the Assessee. (Commissioner of Income Tax v. Interra Software India (P) Ltd. (2011) 238 CTR (Del) 23, Commissioner of Income-tax v. Damco Solutions (P) Ltd. [2011] 11 taxmann.com 365 (Del) and Commissioner of Income Tax v. EDS Electronics Data Systems (India) (P) Ltd. (2013)89 DTR (Del) 182 followed)
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| | Pr. CIT vs. E-Funds International India Pvt Ltd (Delhi High Court)by editor |
Making of a claim under Section 80HHE of the Act in one assessment year will not preclude an Assessee from claiming the benefit under Section 10A of the Act in respect of the same unit in a succeeding assessment year. The purpose of the Section 80HHE(5) of the Act was to avoid double benefit but that would not mean that if for a particular assessment year the Assessee wants to claim a benefit only under Section 10A of the Act and not Section 80HHE, that would be denied to the Assessee
editor | October 12, 2015 at 9:32 am | Categories: All Judgements, High Court | URL: http://itatonline.org/archives/?p=11642
| Comment | See all comments |
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