S. 260A: Appeal – High Court -Limitation-The time limit for filing an appeal to the High Court begins from the date of receipt of the order by the officer entitled to file the appeal. The fact that the ITAT may have dispatched the order earlier is not relevant. The fact that the officer may be aware of the ITAT’s order owing to collateral proceedings is also not relevant. The appeal was not barred by limitation .[ S.2(16), 254(1),260A(2)(a) ]
S. 260A : Appeal – High Court -Transfer pricing – Substantial questions of law-Comparables- Arm’s length price- ‘Transfer Pricing Adjustments’ should become final with a quietus at the hands of the final fact finding body, i.e. the Tribunal. The ITAT’s findings of fact cannot be challenged in the High Court unless it is shown that the findings are ex-facie perverse and unsustainable and exhibit total non-application of mind by the Tribunal to the relevant facts of the case and evidence before it[ S.92C ]
S. 254(1) : Appellate Tribunal – Condonation of delay- Delay of 92 days – The AO was negligent in filing the remand report before the CIT(A). The same attitude has continued at the stage of filing appeal to the ITAT. The excuse that the appeal was not filed due to the AO being busy with time barring assessment is not acceptable. The AO deliberately overlooked the impugned order and did not file appeal before the Tribunal within the period of limitation. Even the authorization by PCIT to file the appeal has been granted after the period of limitation. Hence sufficient cause is not shown [ S.253(1) ]
S. 90 :Double taxation relief -The failure to submit a ‘Tax Residency Certificate’ (TRC) as required by S.90(4) is not a bar to the grant of benefits under the DTAA. However, the assessee is required to produce reasonable evidence of the entitlement of the foreign entity to benefits under the DTAA-DTAA-India –USA. [ S.90(4),art. 12(4)(b) ]
S. 68: Cash credits- Bogus share capital- If the AO has remained silent with folded hands and has not made any independent inquiry from the concerned AO of share holder company and has not controverted the evidence produced by the assessee, that itself is sufficient to knock off the addition made. The fact that there is no personal appearance from director of said cash creditor (share holder) does not mean that an adverse inference u/s 68 can be drawn by the AO without the AO discharging the secondary burden lying upon him .
S. 54 : Capital gains – Profit on sale of property used for residence – Return- There is no bar / restriction that an assessee cannot file a revised return of income after issuance of notice u/s 143(2). A revised return of income can be filed even in course of the assessment proceedings provided the time limit prescribed u/s 139(5) is available. The Departmental Authorities are not expected to deny assessee’s legitimate claim of deduction by raising technical objection- Exemption claimed in revised return was directed to be allowed . [ S.139(5) 143(2) ]
S. 253 : Appellate Tribunal – Territorial jurisdiction – Stay-Location of Assessing Officer, at point of time when Tribunal hears and determines case, is relevant for determining jurisdiction of Bench to hear stay/appeals- Registry was directed to place matter before President to take final call on issue, hence the Registry was directed to place matter before President for final decision on transfer of assesee’s case to Delhi Benches . [ S. 127, ITATR, 4 ]
S. 41(1) : Profits chargeable to tax – Remission or cessation of trading liability –Amount not written back sundry creditors in his profit and loss account and had shown balance outstanding towards those creditors cannot be added as income .
S.40(a)(ia):Amounts not deductible – Deduction at source –Labour charges – Payee had shown the amount as income in his hand hence no disallowance could be made .[ S.194C, 201 (1)]
S. 36(1)(viia) :Bad debt-Provision for bad and doubtful debts – Schedule bank – Rural or Non Rural advances – Entitled for deduction subject to upper limit of deduction laid down in said section- Matter remanded .