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Everywhere Ego issue. This issue could have been sorted amicably. One has to have patience and to set aside his personal ego.A simple issue has been made too complicated.God knows how we are going to mature.

[2014] 44 taxmann.com 166 (Delhi)

HIGH COURT OF DELHI

Commissioner of Income-tax -II

v.

Maruti Suzuki (India) Ltd.*

SANJIV KHANNA AND SANJEEV SACHDEVA, JJ.
WRIT PETITION (CIVIL) NOS. 5003 & 5086 OF 2013†
FEBRUARY  21, 2014
23. We do not have figures or data on whether the demands raised, which was subject matter of stay, was sustained/upheld or were deleted by the tribunal. Merits and justification of additions is examined by the appellate forums and demands raised have relevance when they are sustained by the tribunal/High Court and the Supreme Court.

24. Registry of this Court has made available to us following data:—

A   B   C   D   E
Year   Total number of income-tax appeals   Appeals filed by CIT   Appeals filed by assessee   % of appeals filed by Assessee
2009   1367   1128   239   18
2010   2063   1790   273   13
2011   1303   1121   182   14
2012   711   578   133   19
2013   584   464   120   21
(The data/figures in columns C and D have been manually calculated and thus subject to marginal calculation error).

It must have filed as tax effect in all these cases is higher than 10 lacs( 50 X 20%). But no contrary judgement of any high court has been noticed except contrary judgement of Jaipur Bench.

T: Even where assessee requested Assessing Officer to treat original return as one in response to section 148 proceeding, notice under section 143(2) was mandatory; otherwise re-assessment would be bad in law

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[2014] 45 taxmann.com 424 (Madras)

HIGH COURT OF MADRAS

Commissioner of Income-tax, Chennai

v.

Alstom T & D India Ltd.*

MRS. CHITRA VENKATARAMAN AND K. RAVICHANDRABAABU, JJ.
TAX CASE (APPEAL) NOS. 1183 & 1186 OF 2006†
SEPTEMBER  3, 2012

Section 147, read with section 143, of the Income-tax Act, 1961 - Income escaping assessment - Issue of Notice (Reasons to believe) - Assessment year 1994-95 - Whether where assessee had requested Assessing Officer to treat original return already filed as one in response to section 148 proceeding, further proceedings regarding compliance of procedure under section 143(2) is to be completed as this section is mandatory in nature - Held, yes - Whether where no notice was issued under section 143(2), finalisation reassessment proceedigns under section 143(3), read with section 147, was bad in law - Held, yes [Para 6] [In favour of assessee]

FACTS

■       A notice under section 148 was issued. Since, there was no response, notice under section 142 was issued. The assessee requested revenue to treat the original return as conclusive return and sought reason for reopening of assessment.
■       The Assessing Officer replied that reasons for reopening assessment need not be communicated to the assessee. Ignoring contents of the assessee's letter, the Assessing Officer viewed that the assessee had not filed return and thus, completed assessment.
■       On appeal, the Commissioner (Appeals) upheld the reopening of the assessment.
■       However, on second appeal, the Tribunal held that completion of the assessment proceedings under section 143(3), read with section 147 without issue of notice under section 143(2) was bad in law. Hence, the Tribunal cancelled the assessment.

CIT vs. Seervi Samaj Tambaram Trust 362 ITR 199 (Mad)
(i)                   A Charitable Trust will not be disqualified from registration even   if it is having both charitable and religious objects.

IT : Where assessee-trust was admittedly established with objects of religious nature for benefit of a particular community, it could not be granted approval under section 80G(5) merely because expenditure incurred by trust on religious activities was less than 5 per cent of its total income as required under section 80G(5B)

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[2014] 44 taxmann.com 446 (Agra - Trib.)

IN THE ITAT AGRA BENCH

Yug Chetna Parmarth Trust

v.

Commissioner of Income-tax-I, Agra*

BHAVNESH SAINI, JUDICIAL MEMBER
AND PRAMOD KUMAR, ACCOUNTANT MEMBER
IT APPEAL NOS. 370 & 380 (AGRA) OF 2013
FEBRUARY  14, 2014

Section 80G, of the Income-tax Act, 1961 - Deductions - Donation to certain funds, charitable institutions, etc. (Religious trust) - Whether, where assessee-trust was admittedly established with objects of religious nature for benefit of a particular community, it could not be granted approval under section 80G(5) merely because expenditure incurred by trust on religious activities was less than 5 per cent of its total income as required under section 80G(5B) - Held, yes [In favour of revenue]

IT: Where in case of assessee, a charitable trust, gross receipts having exceeded stipulated monetary limit provided in second proviso to section 2(15), assessee was not entitled to claim exemption of income in relevant year but said fact alone could not make trust non-genuine for purpose of invoking section 12AA(3)

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[2014] 45 taxmann.com 303 (Mumbai - Trib.)

IN THE ITAT MUMBAI BENCH 'F'

Vanita Samaj

v.

Director of Income-tax (Exemption)*

D. MANMOHAN, VICE-PRESIDENT
AND N.K. BILLAIYA, ACCOUNTANT MEMBER
IT APPEAL NO. 1034 (MUM.) OF 2012
[ASSESSMENT YEAR 2009-10]
FEBRUARY  26, 2014

Section 12AA, read with section 2(15), of the Income-tax Act, 1961 - Charitable or religious trust - Procedure for registration (Cancellation of registration) - Assessment year 2009-10 - In course of assessment, DIT (Exemption) found that assessee-trust carried on various business activities and its gross receipts exceeded Rs. 10 lakhs - He thus taking a view that by virtue of first and second proviso to section 2(15), assessee lost its charitable character, passed an order under section 12AA(3) and cancelled registration granted to assessee-trust - Whether gross receipts having exceeded stipulated monetary limit provided in second proviso to section 2(15), assessee was not entitled to claim exemption in relevant year but said fact alone could not make trust non-genuine for purpose of invoking section 12AA(3) - Held, yes - Whether, therefore, impugned order of DIT (Exemption) cancelling registration of assessee-trust was to be set aside - Held, yes [Para 8][In favour of assessee]

Clarification regarding charging of interest under section 201(1A) and under section 220(2)
1. The Central Board of Direct Taxes have received several representations seeking clarification about the simultaneous charging of interest under section 201(1A) and under section 220(2) of the Income-tax Act, 1961.
2. After due consideration, it is hereby clarified that for non-deduction of tax at source or failure to pay the tax after deducting the same, interest under section 201(1A) is chargeable. If the tax and/or interest is not paid within the stipulated time, then interest under section 220(2) also becomes chargeable.
Instruction : No. 1944, dated 27-8-1997.

kindly ask AO to read provisions of sec. 220(2). For example, 234B & 220(2) cannot run concurrently.

It will be not the income of anybody for the purpose of income tax.Gifts can be given to relative any time .

Excise & Customs : Right of cross-examination of witnesses whose statements have been relied upon in show-cause notice is a valuable right in any quasi judicial proceedings, as said proceedings may have adverse consequences to assessee and said right can be taken away only in exceptional circumstances stipulated in section 138B

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[2014] 42 taxmann.com 62 (Delhi)

HIGH COURT OF DELHI

Basudev Garg

v.

Commissioner of Customs*

BADAR DURREZ AHMED AND R.V. EASWAR, JJ.
CUS. A.A. NOS. 7, 10, 12 & 13 OF 2010
C.M. NOS. 21740, 21751 & 21754 OF 2010†
APRIL  12, 2013

I. Section 138B of the Customs Act, 1962 read with section 9D of the Central Excise Act, 1944 and section 83 of the Finance Act, 1994 - Relevancy of statements under certain circumstances - When any statement is used against assessee, an opportunity of cross-examining persons who made those statements ought to be given to assessee - Right of cross-examination is a valuable right in any quasi judicial proceeding, as said proceedings may have adverse consequences to assessee; however, said right can be taken away in exceptional circumstances stipulated in Excise section 9D or Customs section 138B viz. person who had given a statement : (a) is dead or (b) cannot be found, or (c) is incapable of giving evidence, or (d) is kept out of way by adverse party, or (e) his presence cannot be obtained without an amount of delay and expense which, under circumstances of case, Court considers unreasonable - Unless such circumstances exist, assessee has a right to cross-examine persons whose statements are being relied upon even in quasi judicial proceedings - Section 138B (identical to excise section 9D), considers such statements as relevant only if, under given circumstances, such a person cannot be produced for cross-examination - Where Department holds that it is not possible to procure attendance of witnesses without undue delay or expense, said view is subject to judicial review and justification of such a finding can be taken up in appeal [Paras 9 to 14] [In favour of assessee]

II. Sections 28 and 122A of the Customs Act, 1962, section 73 of the Finance Act, 1994 and sections 11A and 33A of the Central Excise Act, 1944 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Adjudication of demand - Department alleged that assessee imported certain ball bearings of Chinese origin but showed them as originating from Sri Lanka with a view to evade anti-dumping duty - Various show-cause notice were issued to assessee based on 21 statements/ testimony of various individuals recorded under section 108 of Customs Act - Assessee requested for cross-examination of said witnesses, officers and authorities - Department denied said request on ground that assessee had no such right - Further, in confirming demand, department also relied upon a report dated 20-7-2005, while show-cause was issued on 30-4-2004 and hearings were completed on 14-10-2004 - HELD : Assessee was entitled to cross-examine witnesses in view of express provisions of section 138B of Customs Act, 1962 (identical to provisions of section 9D of Central Excise Act, 1944) - Since said aspect had not been examined and enquiry report had not be supplied to assessee, hence, matter was remanded back to Tribunal for fresh consideration [Paras 9 to 17] [In favour of assessee]

CASE REVIEW

Swadeshi Polytex Ltd. v. Collector of Central Excise 2000 (122) ELT 641 (SC) (para 10) and Lakshman Exports Ltd. v. Collector of Central Excise 2002 (143) ELT 21 (SC) (para 10) relied on.

J&K Cigarettes Ltd. v. Collector of Central Excise 2009 (242) ELT 189 (Delhi) (paras 10 to 14) followed.

Preeti Daga v. Commissioner of Customs 2010 (253) ELT 465 (Tri.-Delhi) (para 16) setaside.

CASES REFERRED TO

Preeti Daga v. Commissioner of Customs [2010 (253) ELT 465 (Tri.-Delhi) (para 1), Swadeshi Polytex Ltd.v. Collector of Central Excise 2000 (122) ELT 641 (SC) (para 9), Lakshman Exports Ltd. v. Collector of Central Excise 2002 (143) ELT 21 (SC) (para 9) and J&K Cigarettes Ltd. v. Collector of Central Excise2009 (242) ELT 189 (Delhi) (para 9).

C. Hari Shankar and S. Sunil for the Appellant. Kamal Nijhawan and Sumit Gaur for the Respondent.

IT : Where assessee was not provided with opportunity to cross examine person providing information that lead into addition to income, fresh adjudication was required

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[2013] 39 taxmann.com 185 (Punjab & Haryana)

HIGH COURT OF PUNJAB AND HARYANA

Panchvati Motors (P.) Ltd.

v.

Assistant Commissioner of Income-tax, Circle -1, Bathinda*

RAJIVE BHALLA AND DR.BHARAT BHUSHAN PARSOON, JJ.
IT APPEAL NO. 211 OF 2012 (O&M)†
SEPTEMBER  2, 2013

Section 143, read with section 147, of the Income-tax Act, 1961 - Assessment - Addition of income [Opportunity of hearing] - Assessee Sales Tax authority held that there was sale of spare parts of cars to assessee by car manufacturer but same was not recorded in books - Said information was supplied to Assessing Officer - Assessing Officer initiated reassessment proceedings and made addition to assessee's income - On appeal, Tribunal found that Sales Tax Appellate Tribunal had set aside order of Sales Tax authority - Further, no authenticated document providing information was collected from car manufacturer, nor was same furnished to assessee or assessee was given opportunity of cross-examining officer who made statement relating to sale in question - Tribunal remitted matter to Assessing Officer for granting an opportunity to assessee to cross-examine officer who made statement relating to sale of cars and to comply with principles of natural justice - Whether order of Tribunal was just and proper - Held, yes [Para 5] [In favour of assessee]

CASE REVIEW

CIT v. Panchvati Motors (P.) Ltd. [IT Appeal No. 151 of 2011, dated 31-7-2013] (para 6) followed.

CASES REFERRED TO

CIT v. Panchvati Motors (P.) Ltd. [IT Appeal No. 151 of 2011, dated 31-7-2013] (para 6).

Sandeep Goyal for the Appellant.

ORDER

Rajive Bhalla, J. - By way of this order, we shall dispose of ITAs No.211, 212, 213, 214, 215, 216, 217 and 218 of 2012 as they involve adjudication of the same questions of fact and law. For the sake of convenience, facts are being taken from ITA No.211 of 2012.

2. The appellant challenges order dated 18.04.2012, passed by the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar.

3. Counsel for the appellant primarily contends that remand of assessment proceedings to the Assessing Authority is not warranted. The additions deleted by the Commissioner of Income Tax (Appeals) Bathinda, should have been affirmed by the Tribunal. The mere violation of principles of natural justice, as discerned by the Income Tax Appellate Tribunal, Amritsar, are not sufficient to remit the matter to the Assessing Officer as no such plea was raised before the Commissioner of Income Tax (Appeals). The following substantial questions of law arise for adjudication: —

"(i)        Whether in the facts and circumstances of the case the Hon'ble ITAT was right in law to hold that the service of notice u/s 148 was invalid and, therefore, it was not correct in quashing the assessment orders on the said grounds?
(ii)        Whether assessment order can be termed invalid merely by the reason of any mistake or omission in service of notice when Section 292B of I.T. Act, 1961 states that if the proceeding is in substance and effect in conformity with or according to the intent and purpose of I.T. Act, 1961, the assessment proceedings cannot be termed invalid merely by reason of any mistake, defect or omission in the notice?"
4. We have heard counsel for the appellant, perused the substantial questions of law as well as the impugned order and find no reason to entertain the appeals much less hold that any substantial question of law arises for adjudication.

5. A perusal of finding recorded by the Income Tax Appellate Tribunal reveals that additions with respect to sale of spare parts was held to be illegal as it was based upon an order passed by the Sales Tax Authority which was set aside by the Sales Tax Appellate Tribunal. The addition for sale of cars etc., was held to be violative of principles of natural justice as information collected from the manufacturer of cars was not furnished to the assessee and the assessee was not allowed to cross-examine the officer who made the statement relating to sale of cars. The Income Tax Appellate Tribunal, has, therefore, rightly remitted the matter to the Assessing Officer for granting an opportunity to the assessee to cross-examine the officer who made statement relating to sale of cars and to comply with principles of natural justice. A relevant extract from order dated 18.04.2012, passed by the Income Tax Appellate Tribunal, reads as follows: —

"18. The findings of the VAT Tribunal order dated 22-8-2006 have been perused by us and the stand of the learned D.R. that at PB 64 being the finding of the VAT Tribunal the entire supply of the spare parts by the Maruti Udyog Limited was never brought/imported in the State of Punjab had been reflected in the books of account. Though in the absence of material on record, the order of the DETC(A) was quashed by the VAT Tribunal on 22-8-2006. The argument of the learned A.R. that when the basis on which the dispute arose had vanished and, therefore, no addition can be made, has been taken into account, the other arguments made by both the parties have also been taken into consideration but the fact remains that the assessee was not allowed to cross-examine the person, who had supplied the information. Since the assessment was being time barred and the A.O. proceeded to complete the assessment on 17-3-2004, the argument of the learned A.R. and the findings of the learned CIT(A) that the assessee was in regular contact with the supplier, Maruti Udyog Limited, the onus lies on the assessee to contradict the information provided by the department, cannot be accepted. It will be against the principle of natural justice to decide any issue firstly without providing the authenticated document to the assessee and without confronting the said authenticated documents and consequently without giving opportunity of cross-examination to the assessee when specifically asked for. The A.O. cannot be permitted to complete the assessment and give the perverse finding without following the principle of natural justice. Therefore, in view of the circumstances and the facts of the case, the matter is set aside to the file of the A.O. who will provide the authenticated information to the assessee and the opportunity of cross examination and complete the assessments accordingly afresh by providing opportunity of being heard to the assessee. Thus all the ground Nos.2 to 4 in the appeals of the assessee and all the grounds of the Revenue in all the years are allowed for statistical purposes."

6. We find no reason to hold that the Income Tax Appellate Tribunal has committed an error that would give rise to a substantial question of law. It would also be appropriate to point that that with respect to the same assessee, an assessment order relating to a similar dispute but a different year, was set aside by this Court in ITA No.151 of 2011 "CIT v. Panchvati Motors (P) Ltd., decided on 31.07.2013, by modifying the order passed by the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar, and restoring the matter to the Assessing Authority to decide the matter afresh after complying with principles of natural justice.

7. In view of what has been stated hereinabove, the appeals are dismissed.

neither the number is there nor the old records are there.

Department has a good case.But,by not giving chance of cross examination will weaken their case too much. "Audi  Alterem Patam". No one can be punished without unheard.Their are lots of judgement in your favour in case cross examination is not given.

The trust has been registered u/s 12A and also under 80G since long. 8OG registration is being renwed as per rule. But trusts is not able to trace 12A certificate. AO insists on 12A certificate. disallows exemption.
kindly guide.
It is settled law that 80G cannot be given without 12A. But he is asking for copy of registration which we are not able to provided.