----- Forwarded Message -----
From: Kapil Goel <advocatekapilgoel@gmail.com>
To: CA.KAPIL GOEL <kapilnkgoelandco@gmail.com>
Sent: Monday, 13 May 2013 9:09 AM
Subject: [Gzb_CA Group -CA. VINAY MITTAL] Gujarat High Court On beauty of Writ Jurisdiction in advancement of Justice; Reopening for apprehended disallowance u/s 40(a)(i)/ia rejected; P&H high court O.P.Jindal University 80G certificate; Loan genuineness; Retention money accrual; Calcutta HC internal transfer of electricity tax holiday unit benchmark price ; Alleged fake purchases vs. cross examination
From: Kapil Goel <advocatekapilgoel@gmail.com>
To: CA.KAPIL GOEL <kapilnkgoelandco@gmail.com>
Sent: Monday, 13 May 2013 9:09 AM
Subject: [Gzb_CA Group -CA. VINAY MITTAL] Gujarat High Court On beauty of Writ Jurisdiction in advancement of Justice; Reopening for apprehended disallowance u/s 40(a)(i)/ia rejected; P&H high court O.P.Jindal University 80G certificate; Loan genuineness; Retention money accrual; Calcutta HC internal transfer of electricity tax holiday unit benchmark price ; Alleged fake purchases vs. cross examination
- Gujarat high court on duty to court to ensure there is no miscarriage of justice to assessee who is hard pressed for refund and AO's attempt to reopen on TDS reconciliation and 40(a)(ia) apprehended disallowance rejected
- Calcutta High Court on alleged bogus purchases third party statement (not cross examined); Bench mark price intra units transfer (domestic transfer pricing electricity)
- P& high court reversing 80G denial by ITAT; RETENTION money taxation; loan of Rs 52 lacs proven
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8003 of 2013 PATEL MAHESHBHAI DAHYABHAI Date : 02/05/2013 We have no hesitation in holding that the Tribunal's order on rectification application suffered from serious legal
defect. If in the original order, the Tribunal was of the opinion that the order passed by the petitioner was not appellable, in exercise of rectification powers the Tribunal simply could not have given directions to the
Commissioner to pass fresh order on the respondent's application. This petition, however, involves peculiar facts. Only to correct the Tribunal's order, we are simply not prepared to call the respondent before us. The man has retired in the year 2000 as a labourer. He is seeking
refund of small sum of Rs.33,949/- which for him is very substantial. Only to correct an apparent error committed by the Tribunal, we would not drag him before High Court. Even if we had issued notice and called him before
us, we would have been persuaded to replace the Tribunal's order by our order and same direction would have followed. Only to bring about some result in a correct manner, we would be wholly unjustified in asking
a man of advanced age and of poor means before us. Response to a High Court notice comes at a considerable cost. In exercise of discretionary writ jurisdiction, we refuse to entertain this petition. This is the beauty of the writ jurisdiction and we would be failing in our duty, if we entertained the petition In the result, the petition is dismissed (refer same type of order by Karnataka high court in case of Arecanut Society order dated 18/4/2013)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3047 of 2013 PATEL ALLOY STEEL (P) LIMITED Date : 07/05/2013
One of the reasons to believe recorded u/s 148 of the Act by AO stated as under:
(iv) On verification of the details, it is noticed that the assessee has incurred huge expenditure which has subject to TDS under Chapter-XXIII B of the Act, including Provisions of Sec.195 applicable to the payment made to nonresidents.
Though the TDS return acknowledgment are obtained and placed on records, the reconciliation of such expenditure and amount subjected to TDS requires to be
made for possible disallowance u/s. 40(a)(ia) of the Act."
Which reopening ground is repelled by High court as under:
With respect to the question of TDS, the Assessing Officer himself has recorded that the tax was deducted and return was duly filed. He only required to reconcile the expenditure and the tax deducted at source which may lead to a possible disallowance under section 40(a)(ia) of the Act. Surely, for such a fishing inquiry reopening of assessment could not be permissible that too assessment beyond the period of four years from the end of the relevant assessment year when it is not even the case of the Department that the assessee had not disclosed truly and fully all material facts.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No.285 of 2012
O.P.Jindal Global University, Sonepat The assessee, in his appeal (ITA No.285 of 2011) directed against an order declining exemption sought by it under Section 80-G(5) of the Act, has raised the following substantial question of law: "Whether on the facts and in the circumstances of the case, the Tribunal erred in law in upholding the denial of registration / approval under Section 80G(5) of the Act?"
but the Tribunal in two separate appeals filed by the assessee in respect of two applications submitted by the assessee, granted registration under Section 12AA of the Act but declined request for exemption under Section 80G(5) of the Act for the reason that in the event of dissolution of the University, the assets will vest in the sponsoring body i.e. Om Parkash Jindal Gramin Jankalyan Sansthan - trust registered under Section 12AA of the Act, whereas object 27 of the said trust is to apply the funds to construct, alter, maintain, improve, develop, manage and control Dharmshalas, Ashrams, Auditoriums and temples and to provide all kind of required
facilities and worship materials to devotees. Therefore, the said trust is charitable and religious, which are not permissible in terms of Section 80G (5)(ii), which is reproduced as under:
"(ii) the instrument under which the institution or fund is constituted
does not, or the rules governing the institution or fund do not, contain
any provision for the transfer or application at any time of the whole
or any part of the income or assets of the institution or fund for any
purpose other than a charitable purpose;"
After the said order was passed by the Tribunal, the trust – the sponsoring body amended Objects of that Trust, which led to the filing of the fresh petition by the assessee on 09.11.2010, which has since been allowed by the Tribunal. The Revenue's appeal i.e. ITA No.282 of 2012 is also separately listed for hearing today.
In respect of the assessee's appeal, declining the request for exemption under Section 80G of the Act, learned counsel for the assessee has argued that firstly it is hypothetical that the university will be dissolved and in the event of dissolution of the university, the sponsoring body will appropriate the fund for religious purposes in excess of 5% of receipt of a
total receipt of the said trust. It is also contended that the exemption under Section 80G of the Act is one time event though the assessee is required to carry out its charitable activities without fail. In the event of not performing any charitable activities, the authorities under the Act have jurisdiction to assess such charitable institution in accordance with law but that will not dis-entitle the assessee from exemption under Section 80G of the Act. The issue has been examined that at the stage of registration and for exemption under Section 80G of the Act, the stated object of the trust is required to be examined. Whether the funds are properly applied or not, can be examined by the Assessing Officer at the time of framing the
assessment. In view of the above, we find that the Tribunal has erred in law in refusing exemption to the assessee under section 80G(5) of the Act.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 06.05.2013
ITA No. 720 of 2008 M/s SAB Industries Limited Respondent-company is engaged in construction work. For the relevant accounting year, the assessee filed its return of income declaring net loss of Rs. 2,85,60,913/-. The Assessing Officer made additions during the course of assessment which includes disallowance on account of retention money retained by the authority on whose behalf work was carried out, awaiting successful completion of the work. The disallowance ordered by the Assesssing Officer was set aside by the Commissioner of Income Tax (Appeals). The said order was affirmed by the Tribunal. Learned counsel for the assessee relied upon Commissioner of Income Tax vs. Chanchani Brothers (Contractors) Pvt. Ltd, 161 ITR, 418 Patna, Commissioner of Income Tax, Simplex Concrete Piles (India) Pvt. Ltd., 179 ITR 8 (Calcutta), Commissioner of Income Tax vs. East Coast Constructions and Ind. Ltd, (2006) 283 ITR 297 (Mad), Commissioner of Income Tax vs. Associated Cables P. Ltd, (2006) 286 ITR 596 (Bom)
Commissioner of Income Tax vs. P & C Constructions (P) Ltd., (2009) 318 ITR 113 (Mad) , wherein, it has been held that the right to receive retention
money accrues only after the obligations under the contract are fulfilled. Therefore, it will not amount to income of the assessee in the year in which amount is retained.
In view of the consistent view of the different High Courts with which we respectfully agree, we do not find any substantial question of law
arises for consideration.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision: May 07, 2013 ITA No. 193 of 2012 (O&M) Parvesh Mahajan i) Whether the ITAT was justified in reversing the order of CIT (Appeals) wherein addition of Rs.53 lakhs was confirmed as unexplained investment for purchase of land?
ii) Whether the ITAT, Amritsar Bench, Amritsar is right in holding that the assessee has discharged her onus of proving the sources of Rs.53 lakhs when the documents relating Agreement Deed with SAR Stitchers Pvt. Ltd. were defective and that too was against the statement of assessee recorded under
Section 131 of the Income Tax Act, 1961? Learned Commissioner of Income Tax (Appeals) confirmed the addition of `53 lacs made by the
Ass essing Officer on account of unexplained investment for
purchase of land from Radha Swami Satsang Beas, Karan Ban,
Jammu. However, in further appeal, the Tribunal has deleted the
addition as the assessee is said to have explained the sources for
purchase of land during the year in question.. Learned Tribunal has found that a sum of `52 lacs was received from M/s SAR Stitchers Pvt. Ltd. Delhi on 05.01.2007. The Tribunal also noticed that `60 lacs was paid in cash to Radha Swami Satsang Beas, Karan Ban, Jammu, which deposit finds mention in the accounts of seller. The Tribunal has taken into onsideration the record produced by the assessee in respect of transaction entered with copy of confirmations, PAN number, Income tax particulars and audited accounts of the lendor. We find that the finding that the investment of `52 lacs was duly explained by the assessee, is a finding of fact
I.T.A.T. No. 58 of 2013
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction [Income Tax]
ORIGINAL SIDE M/S KANORIA CHEMICALS & INDUSTRIES LTD
The C.I.T. [Appeal] did not interfere in an appeal preferred by the assessee. The assessee approached the Tribunal. The Tribunal reversed the finding of the Assessing Officer for the following amongst other reasons :
"We find that the price at which State Electricity Boards sells electricity to industrial consumers is representative of the price that electricity would ordinarily fetch in the open market and i.e. the price which has been adopted by the assessee for the electricity generated by the eligible business transferred to its other business for the purpose of computation of profits and gains of the eligible business in terms of section 80IA(8) of the Act. We find that the AO has taken figures from units of powers sold to UPPCL at 0.89 units @ Rs.24,43,159/- as against the price of assessee i.e. inter-unit transfer @ Rs.43,02,187/- per
unit. We are of the view that the figures picked up by the AO from the orders of UPPCL does not represent the open market value of electricity." The learned Tribunal also allowed the claim for deduction under Section 80IA following the judgment of this Court in the case of CIT Vs. Graphite India Limited. From the aforesaid brief narration, it would appear that the views adopted by the learned Tribunal, prima facie, are correct. We have enquired of Mr. Dudheria, learned
Advocate appearing for the Revenue, as to on what basis does he dispute the correctness of the order passed by the learned Tribunal We have considered his submission and also considered the submissions advanced by learned Senior Advocate appearing for the Assessee and we are of the opinion that this appeal does not involve any substantial question of law and is, therefore, not admitted and
thus rejected.
IN THE HIGH COURT AT CALCUTTA M/S. LALWANI METALLICES PRIVATE LIMITED ITAT No. 64 of 2013
GA No. 689 of 2013 "Whether on the fact and circumstances of the case, the Learned Income Tax Appellate Tribunal was justified in law in deleting the addition of Rs.4,49,93,146/- made
by the Assessing Officer on account of bogus/ingenuine purchase made by the Assessee
from VISPL." The Assessing Officer, appears to have, added a sum of Rs.4,49,93,145/- to the
income of the assessee on account of bogus purchases. The aforesaid addition is based
on the alleged statement allegedly made by one Sri Vikash Agarwal, a director of the
seller, M/s. Vikash Iron & Steel Private Limited. The Assessing Officer based on the
statement of Sri Vikash Agarwal called upon the assessee to make his response. The assessee in its turn contended that the purchases made by them from M/s. Vikash Iron & Steel Private Limited were all genuine and the payments were made through bank. They produced the relevant documents as also indicated the parties to whom those goods were sold. The assessee also wanted the said Vikash Agarwal to be produced for crossexamination. The Assessing Officer, without affording any opportunity to the assessee to cross-examine the said Vikash Agarwal and apparently in a hurry, which he himself has recorded "sufficient time was not available for verfication of the contentions", proceeded to add the aforesaid sum.
Aggrieved by the order of the CIT(A), the Revenue approached the Tribunal. The Tribunal confirmed the order of the CIT(A) holding, inter alia, as follows: "Thus, what is noticed is that in respect of purchases by the assessee from M/s. VISPL other than the allegation of fake and ingenuine purchases and a statement from the Director of VISPL, which remained uncorroborated, there is no evidence contrary to the claim of the purchases by the assessee herein. In the circumstances, we are of the
view that the submission of the ld. D.R. on this issue does not hold water and consequently the same stands rejected." Therefore, it is clear that the question raised by the Revenue is a pure question of fact. The finding recorded by the Tribunal in that regard is final.
We are, as such, not inclined to admit the appeal, which is, accordingly, dismissed.
__._,_.___
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