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DATE: July 8, 2019 (Date of pronouncement)
DATE: July 20, 2019 (Date of publication)
AY: -
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CITATION:
S. 80IB(10)(a): There shall be stay of judgement in Global Reality 379 ITR 107 (MP) where it was held that issuance of completion certificate, after the cut off date by the Local Authority but, mentioning the date of completion of project before the cut off date, does not fulfill the condition specified in clause (a) of Section 80IB (10) read with Explanation (ii) thereunder

We accordingly hold that issuance of completion certificate, after the cut off date by the Local Authority but, mentioning the date of completion of project before the cut off date, does not fulfill the condition specified in clause (a) of Section 80IB (10) read with Explanation (ii) thereunder. We reject the argument of the assessee that the effect of amended clause (a) of sub-Section 10 of Section 80IB, which has come into force with effect from 1st April, 2005, has retrospective effect or that it is unjust in any manner or incapable of compliance at all

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DATE: July 15, 2019 (Date of pronouncement)
DATE: July 20, 2019 (Date of publication)
AY: -
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S. 220(6) Stay of demand: The decision of the authorities to demand payment of 20% of the disputed demand is in consonance with the department's circulars. There are no extra ordinary reasons for imposing condition lighter than one imposed by the authorities. The contention that the assessee that he received no consideration and no tax could have been demanded from him is subject matter of the Appeal proceedings and cannot be a ground for lifting the rigor of the requirement of deposit of 20% of the disputed tax pending appeal

The decision of the authorities is in consonance with the department’s circulars. We do not find any extra ordinary reasons for imposing condition lighter than one which has been imposed by the said authorities. The contention of the Petitioner that he had received no consideration at the time of transfer of the tenancy of immovable commercial property of which he is the owner and that therefore no tax could have been demanded from him, would be subject matter of the Appeal proceedings. This is not a ground for lifting the rigor of the requirement of deposit of 20% of the disputed tax pending appeal

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DATE: June 26, 2019 (Date of pronouncement)
DATE: July 13, 2019 (Date of publication)
AY: -
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Prosecution u/s 276C for tax evasion: If the assessee's appeal against levy of s. 271(1)(c) penalty for concealment of income is allowed & has become final, the quashing of prosecution is automatic. The High Court can exercise its inherent jurisdiction to quash the prosecution and not indulge in the empty formality of directing the assessee to approach the trial Magistrate (K. C. Builders 265 ITR 562 (SC) followed)

The subject matter of the complaint being concealment of income arrived at on the basis of the finding of the assessing officer, if the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eye of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction

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DATE: March 15, 2019 (Date of pronouncement)
DATE: July 13, 2019 (Date of publication)
AY: 2008-09
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CITATION:
S. 254(2) MA: If an appeal against the order of the ITAT has been filed in the High Court and the same has been admitted by the High Court, a Miscellaneous Application u/s 254(2) seeking rectification and recall of the order is not maintainable. The MA is maintainable only if the appeal is pending and has not been admitted (RW Promotions 376 ITR 126 (Bom) distinguished, Muni Seva Ashram 38 TM.com 110 (Guj) followed)

Considering the totality of the facts involved in the present case and in view of the decisions cited hereinabove, we are of the view that in the present case since the appeal against the order of the Tribunal has already been admitted and a substantial question of law has been framed by the Hon’ble High Court, the Tribunal cannot proceed with the Miscellaneous Application u/s 254(2) of the Act

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DATE: May 29, 2019 (Date of pronouncement)
DATE: July 6, 2019 (Date of publication)
AY: 2012-13
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Capital vs. Revenue Receipt: Damages received for breach of development agreement are capital in nature & not chargeable to tax. The only right that accrues to the assessee who complains of breach is right to file a suit for recovery of damages from the defaulting party. A breach of contract does not give rise to any debt. A right to recover damages is not assignable because it is not a chose-in-action. Such a mere 'right to sue' is neither a capital asset u/s 2(14) nor is it capable of being transferred & is therefore not chargeable under u/s 45 of the Act (All imp judgements referred)

Despite the definition of the expression capital asset in the widest possible terms in section 2(14), a right to a capital asset must fall within the expression ‘property of any kind’ and must not fall within the exceptions. Section 6 of the Transfer of Property Act which uses the expression ‘property of any kind’ in the context of transferability makes an exception in the case of mere right to sue. The decisions there under make it abundantly clear that the right to sue for damages is not an actionable claim. It cannot be assigned and its transfer is opposed to public policy. As such it will not be quite correct to say that such a right constituted capital asset which in turn has to be an interest in ‘property of any kind.’

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DATE: November 28, 2018 (Date of pronouncement)
DATE: July 6, 2019 (Date of publication)
AY: 2010-11
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S. 292BB: If the assessee objects to the AO's jurisdiction but his AR later conveys no-objection, it means that the assessee has withdrawn his objection. Submission that the AR had no authority to convey no-objection and cannot bind the assessee is not acceptable. Once the assessee empowers his AR to appear before authorities, all of the AR's concessions are binding on the assessee (Himalayan Coop Group Hsg Soc 2015 7 SCC 373 distinguished)

We are confronted with a situation in which the assessee did raise objection before the AO during the course of assessment proceedings itself that the notice was not properly served upon him. However, the AR of the assessee appearing before the AO, gave his ‘no objection’ for furthering the assessment proceedings. When the second limb of the ld. AR not objecting to the continuation of assessment proceedings despite service of notice on the assessee’s manager is considered in conjunction with the first limb of the assessee initially objecting to the service of notice, the inference which follows is that the assessee did raise objection initially but withdrew the same before the AO

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DATE: April 23, 2019 (Date of pronouncement)
DATE: July 6, 2019 (Date of publication)
AY: 2009-10
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CITATION:
S. 254(1)/(2): The fact that the judges indicate a decision during the hearing or even dictate a judgement in open court gives no right to the litigant. Judges can change or alter their decision at any time until the judgement is signed & sealed. A MA on the ground that the ITAT Members stated a particular decision during the hearing but did the opposite in the order is not maintainable

The question arises as to whether the Bench while hearing the appeal has given any decision. May be the assessee got the impression in good faith. Even if the impression went to the assessee then also the same does not have any effect on the order of the Court as it is well settled law that a judge can recall the order and change his mind in extreme case where the though draft copy signed and dictated in the open, as held in the case of Kaushalbhai Ratanbhai Rohit & Ors. vs. State of Gujrat, [SLP (Criminal) 453/2014)], by the Apex Court

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DATE: June 25, 2019 (Date of pronouncement)
DATE: July 3, 2019 (Date of publication)
AY: 2011-12
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CITATION:
S. 147/ 148: Even in a case where the return is accepted u/s 143(1) without scrutiny, the fundamental requirement of income chargeable to tax having escaped assessment must be satisfied. Mere non-disclosure of receipt would not automatically imply escapement of income chargeable to tax from assessment. There has to be something beyond an unintentional oversight or error on the part of the assessee in not disclosing such receipt in the return of income. In other words, even after non-disclosure, if the documents on record conclusively establish that the receipt did not give rise to any taxable income, it would not be open for the AO to reopen the assessment referring only to the non disclosure of the receipt in the return of income. The attempt of further verification would amount to rowing inquiry

Despite such difference in the scheme between a return which is accepted under section 143(1) of the Act as compared to a return of which scrutiny assessment under section 143(3) of the Act is framed, the basic requirement of section 147 of the Act that the Assessing Officer has reason to believe that income chargeable to 3 (2013) 356 ITR 481 (Guj) OS WP 1230-19.doc tax has escaped assessment is not done away with. Section 147 of the Act permits the Assessing Officer to assess, reassess the income or recompute the loss or depreciation if he has reason to believe that any income chargeable to tax has escaped assessment for any assessment year. This power to reopen assessment is available in either case, namely, while a return has been either accepted under section 143(1) of the Act or a scrutiny assessment has been framed under section 143(3) of the Act. A common requirement in both of cases is that the Assessing Officer should have reason to believe that any income chargeable to tax has escaped assessment

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DATE: June 25, 2019 (Date of pronouncement)
DATE: July 3, 2019 (Date of publication)
AY: -
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CITATION:
S. 192 TDS/ 276B: A complaint by the Dept regarding 12 month delay in paying TDS to the Govt is maintainable. Deposit of TDS with interest does not absolve criminal liability. Plea that delay was caused due to financial hardship has to be proved. However, as there is no allegation by the Dept that accused is irregular in paying taxes other than the case in hand, the minimum punishment of 3 months rigorous imprisonment and fine will have to be awarded. The Court has no discretion to reduce the sentence

In view of aforesaid reasons arguments advanced on behalf of defence holds no ground. Defence utterly failed to prove the submissions by leading evidence as stated above. Considering the above referred authority and the present case, it appears that if the payment is made at belated stage then it will be treated as default and appropriate action can be taken under this Act. It also clear that deposit of TDS with delay does not absolve criminal liability. If it is considered that accused paid the amount after period of 12 months, in such circumstance, complaint is maintainable and it does not absolve criminal liability of the accused persons

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DATE: July 1, 2019 (Date of pronouncement)
DATE: July 3, 2019 (Date of publication)
AY: 2009-10
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CITATION:
S. 143(2) Notice/ Rule 127: There is a difference between "issue" of notice and "service" of notice. Service of notice is a pre-condition for assuming jurisdiction to frame the assessment. Under Rule 127, service at the PAN address is valid even if it is different from the address in the Return. If a notice is issued but is returned unserved by the postal authorities and thereafter no effort is made to serve another notice before the deadline, it shall be deemed to be a case of "non-service" and the assessment order will have to be quashed

Section 27 provides that service by post shall be deemed to be effected by properly addressing, pre-paying and posting by registered post. It means that when a letter containing the document is properly addressed, pre-paid and posted by a registered post, it will be considered as a valid service. It is not the end of the provision. There is a specific mention of the words `unless the contrary is proved’. It means that the presumption of valid service on properly addressing, pre-paying and positing by registered post is not irrebuttable. It can be rebutted if the contrary is proved. Extantly, we are dealing with a situation in which the contrary has been proved inasmuch as the Department has itself accepted that the notice sent by the registered post was returned by the postal authorities. Under such circumstances, there can be no presumption of valid service of notice in terms of the above provisions

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