Search Results For: Prakash Jotwani


DCIT vs. Alcon Biosciences P Ltd (ITAT Mumbai)

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DATE: February 28, 2018 (Date of pronouncement)
DATE: March 26, 2018 (Date of publication)
AY: 2010-11
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CITATION:
S. 68 Bogus share capital: The fact that a pvt. ltd co issued shares at an exorbitant premium is irrelevant if the assessee has proved the genuineness of the transaction. If the assessee has furnished necessary evidence to prove the identity of the share applicants and their PAN details, the department is free to proceed to reopen the individual assessments of the share applicants but it cannot be regarded as undisclosed income of the assessee

As regards the AOs observation with regard to the issue of shares at a face value of Rs.10/- issued at a premium of Rs.990 per share, we find that there is no merit in the findings of the AO for the reason that the issue of shares at a premium and subscription to such shares is within the knowledge of the company and the subscribers to the share application money and the AO does not have any role to play as long as the assessee has proved genuineness of transactions

Crescent Construction Co vs. ACIT (ITAT Mumbai)

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DATE: May 26, 2017 (Date of pronouncement)
DATE: June 15, 2017 (Date of publication)
AY: 2005-06
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CITATION:
S. 147/ 148: Entire law on reopening of assessments in the context of "change of opinion" vs. "failure to apply mind", with reference to s. 114 of the Indian Evidence Act, 1872 and all judgements on the point discussed

Section 114 of the Evidence Act, 1872, is permissive and not a mandatory provision. Nine situations by way of illustrations are stated, which are by way of example or guidelines. As a permissive provision it enables to judge to support his judgment but there is no scope of presumption when facts are known. Presumption of facts under section 114 is rebuttable. The presumption raised under illustration (e) to section 114 of the Act means that when an official act is proved to have been done, it will be presumed to have been regularly done but it does not raise any presumption that an act was done for which there is no evidence or proof

Balgopal Trust vs. ACIT (ITAT Mumbai)

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DATE: May 3, 2017 (Date of pronouncement)
DATE: May 26, 2017 (Date of publication)
AY: 2012-13
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CITATION:
S. 54F: U/s 161, a trust which is for the sole benefit of an individual, has to be assessed as an “individual” and not as an “AOP”. Consequently, a trust is eligible for s. 54F deduction

The issue is as to whether the assessee trust, which is for the sole benefit of an individual, will be entitled to deduction u/s. 54F or not, when its status is that of A.O.P. As per Section 54F the benefits of this section is available to individual or Hindu undivided family (HUF). Hon’ble jurisdictional High Court in the case of Mrs. Amy F. Cama vs. CIT 237 ITR 82 has elaborately considered the same issue. The jurisdictional High Court was dealing with assessee trust’s claim for deduction for purchase price of the flat from capital gain as per Section 54 of the Act. The Hon’ble jurisdictional High Court has held that the assessee trust was entitled for the same. The Hon’ble Court had expounded that Section 161 of the I.T Act, 1961, makes a representative assessee subject to the same duties, responsibilities and liabilities as if the income was received by him beneficially. The fiction is created as it was never the object or intention of the Act to charge tax upon persons other than the beneficial owner of the income. Whatever benefits the beneficiary will get in the said assessment must be made available to the trustee while assessing him under section 161

Anil Chhaganlal Jain vs. ACIT (ITAT Mumbai)

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DATE: April 13, 2017 (Date of pronouncement)
DATE: May 19, 2017 (Date of publication)
AY: 2013-14
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CITATION:
S. 68 cash credit: If the assessee has explained the source of the loans received by it, the fact that the lender may have raised bogus share capital to advance the funds to the assessee does not mean that the loan received by the assessee can be treated as unexplained income. A statement recorded under duress, which is retracted later, cannot be the sole basis for addition

If the Ld. Assessing Officer was apprehensive about the genuineness of the amount, he was duty bound to examine in the hands of the M/s Encee Securities Pvt. Ltd. or its share holders. At least, the money was germinated from the hands of the share holders, who contributed to M/s Encee Securities Pvt. Ltd. but in the hands of the present assessee, it is merely a loan and this fact has not been denied by any of the party. Even till this date, M/s Encee Securities Pvt. Ltd. has never denied that loan was given to the present assessee, therefore, the assessee is not expected to prove the source of source

Small Wonder Industries vs. CIT (ITAT Mumbai)

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DATE: February 24, 2017 (Date of pronouncement)
DATE: April 22, 2017 (Date of publication)
AY: 2009-10
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CITATION:
S. 263: There is a distinction between “lack of enquiry” and “inadequate enquiry”. If the AO has called for the necessary details and the assessee has furnished the same, the fact that the AO is silent in the assessment order does not mean that he has not applied his mind so as to justify exercise of revisional powers by the CIT u/s 263

We are of the view, that there is a distinction between “lack of enquiry” and “inadequate enquiry”. In the present case the Assessing Officer collected necessary details, examined the same and then framed the assessment u/s. 143(3) of the Act. Therefore, in such a situation the decision from Hon’ble High Court of Delhi in CIT vs. Anil Kumar Sharma (2011) 335 ITR 83 (Del.)(supra), clearly comes to the rescue of the assessee . We are expected to ascertain whether the Assessing Officer had investigated/examined the issue and applied his mind towards the whole record made available by the assessee during assessment proceedings. Uncontrovertedly, necessary details/reply to the questionnaire were filed/produced by the assessee and the same were examined by the Assessing Officer, therefore, it is not a case of lack of enquiry by the Assessing Officer

H. K. Pujara Builders vs. ACIT (ITAT Mumbai)

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DATE: May 9, 2016 (Date of pronouncement)
DATE: June 2, 2016 (Date of publication)
AY: 2009-10
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CITATION:
S. 254(1): The Tribunal cannot consider new material or information which comes to the possession of the AO after passing the assessment order. The appellate procedure is designed to adjudicate matters that were originally framed in the assessment order and new material cannot be considered

Under the scheme of the Act, the order passed by the assessing officer is being contested by the assessee before Ld CIT(A) and thereafter, by both the parties before the Tribunal, if they feel aggrieved by the order passed by Ld CIT(A). After passing the assessment order, the assessing officer becomes functus officio and hence, if any material or information comes to the knowledge of the AO subsequently, then the assessing officer is required to follow the course of action provided under the Act and the Income tax Act does not provide for modification of the order that has already been passed. The appellate procedure has been designed to adjudicate the matters that were originally framed in the assessment order

Avan Gidwani vs. ACIT (ITAT Mumbai)

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DATE: April 6, 2016 (Date of pronouncement)
DATE: April 15, 2016 (Date of publication)
AY: 2007-08
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CITATION:
Rule 46A of the Income Tax Rules which regulates the admission of additional evidence by the CIT(A) cannot override the principles of natural justice

The principle “Audi alteram partem”, i.e. no man should be condemned unheard is the basic canon principles of natural justice and accordingly we find merit in the contentions of the assessee that Rule 46A of the Income Tax Rules cannot be over ride the principles of natural justice. Hence we are of the view that the learned CIT(A) was not justified in refusing to admit the various additional evidences furnished by the assessee

ACIT vs. Tristar Jewellery Exports Pvt. Ltd (ITAT Mumbai)

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DATE: July 31, 2015 (Date of pronouncement)
DATE: August 6, 2015 (Date of publication)
AY: 2006-07
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CITATION:
Bogus sales and purchases: Reliance on statement of supplier who confesses to providing accommodation entries without giving assessee right of cross-examination violates principles of natural justice and the addition has to be deleted in toto

The reassessment order is as a result of violation of the natural principle of audi alteram partem. A statement recorded at the back of a party cannot be used against such party without confronting such statement to the party. Hence, on this score alone, the reassessment order is unsustainable in the eye of law and we hereby cancel the same

Deepi Arora vs. ITO (ITAT Mumbai)

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DATE: February 18, 2015 (Date of pronouncement)
DATE: March 16, 2015 (Date of publication)
AY: 2007-08
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CITATION:
Though u/s 80-IA(5), the profits of the eligible unit has to be computed on the ‘stand alone’ principle, in a case where the assessee also has non-business income, the brought forward unabsorbed depreciation u/s. 32(2) has to be set off against the eligible profits before computing s. 80-IA deduction

The assessee’s manner of computing Gross Total Income, though mathematically leading to the same result, i.e., in terms of net taxable income, is incorrect and not in conformity with either the terms of the provisions or the scheme of the Act. There is, in fact, no scope for any vacillation; the same being basic to the scheme of the Act, with the apex court in Synco Industries Ltd 299 ITR 444 (SC) explaining the manner in which the GTI is to be computed, so that independent of the provision of s. 80-I(6) (or s. 80-IA(5)), all other applicable provisions, including ss. 32(2) & s. 72, would apply in computing such income

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