1. ESTATE
OF HEMRAJ KHAZANCHI:
I.T.A. No. 904/Kol/2018 dtd 3.05.2019
Sec 154 r.w sec 143(1) &
sec 168
In the instant case the the
mistake was committed by the executor of will in applying for the PAN in the
status of BOI and in the processing done
under section 143(1), CPC determined the liability by treating the status as a
firm.
The assessee filed application u/s
154 which was disposed of treating the status as AOP.
Held,
There is no estoppel in law.
Where there is a single executor to the will, as per the provisions of sec 168, the assessment of the income
of the deceased assessee shall be made in the hands of the executor in the status of an individual ( entitled to
basic exemption limit) from the date
of death till the assets are distributed as per the will. The mistake is
rectifiable u/s 154.
2) CREATIVE TECHNOTEX PVT. LTD.
ITA No.2035/KOL/2016 dtd
27.07.2018
Payment to C
& F agents & distributors in the
nature of incentives cannot be said to be commission – reimbursement of
expenses incurred by agents on behalf of assessee cannot be the subject matter
of TDS - provision of sec 194H r.w sec 40(a)(ia) is not applicable in either
case.
Reliance placed on -
a) CIT
(TDS) vs United Breweries Ltd. (387 ITR 150/ [2017] 80 taxmann.com 123 (Andhra
Pradesh & Telangana))
When there is no
relationship of a principal and agent between assessee and retailers, trade
incentives paid by assessee to retailers through del credere agents in order to
boost its sale could not be treated as commission for the purpose of section
194H. It can be seen that beer was sold by the assessee to the del credere
agent and the agent, in turn, sold the beer purchased by them, to the
retailers. Both these transactions were independent of each other, and were on
a principal to principal basis. It can be seen that there was no direct
relationship between the assessee and the retailer and so, the discount offered
by the assessee to the retailers could only be treated as sales promotion
expenses, and not as commission as no service was rendered by the retailers to
the assessee.
b) M/s Kan Tech Solutions Pvt. Ltd. vs ITO, Kolkata
(ITA No. 1004/Kol/2012)[A.Y. 2009-10]
The assessee company paid commission to
parties and incentive (included travelling allowance) to various persons, who
collected money from various persons on the directions of the team employed by
the assessee company. The incentive was not given as a fixed rate for payments
which is known in the trade as an incentive for actual collection and it was in
the nature of discount and not commission. Thus, the assessee was not liable to
deduct TDS and the appeal of the assessee was allowed.
c) Satyendra Jhunjhunwala vs ITO, Kol (ITA No.
1988/Kol/2009) [A.Y. 2005-06])
The assessee
had paid freight charges and clearing charges to the parties and had not
deducted any TDS on such payment, since the same included Octroi tax, custom
duty, service tax, stamp duty and port charges. The amount was paid by the
transporters and reimbursed by the assessee. It was held that the reimbursement
of expenses incurred by agents on behalf of assessee cannot be subject matter
of TDS. Hence, the assessee’s appeal was allowed. [relied on i) ACIT vs
Grandprix Fab. (P) Ltd., (2010) 128 TTJ 60 (ITAT, Del.) , ii) DCIT vs M/s M.B.
Ispat Corporation Ltd. (ITA No. 1580/K/2008), iii) M/s Utility Powertech Ltd.
vs ACIT,( ITA No.2561/Mum/2009) which held that reimbursement of expenses had
no element of income and therefore TDS provisions were not applicable]
3) SHIVANGAN PROMOTERS PVT. LTD.
I.T.A. No. 263/Kol/2016 dtd
28.11.2018
When can
a case be restored back to the file of the A.O for fresh adjudication
Held,
“However
the main grievance of the assessee is that no proper opportunity was given to
the assessee to discharge the onus casted upon it as required in sec. 68
matters. We note that other than a notice u/s. 131 of the Act issued to the
directors to appear personally to produce details/documents , no other
investigation as suggested by the Ld. CIT (guidelines we referred supra) was
carried out by AO since it is not discernable from the order and the fact was
that the entire enquiry was wrapped up within less than three months and in the
light of the fact that the AO acknowledges the participation of the Ld. AR of
the assessee during the hearing fixed by the AO. So, we find force in the
submission of the Ld. AR that no proper opportunity the assessee got before the
AO during the reassessment proceedings.
Since
proper opportunity was not given to assessee by AO during the reassessment
proceedings, we are of the opinion that assessee should get proper opportunity
before the AO during reassessment proceedings.”
Following
-
Hon’ble Delhi High Court in the case of CIT Vs. Jansampark Advertising &
Marketing Pvt. Ltd. in ITA No.
525/2014 dated 11.03.2015
-
Three judge bench of SC in the case of Tin Box Company vs CIT 249 ITR 216
holding that since there was lack of opportunity to the assessee at the
assessment stage itself, the assessment needs to be done afresh. In view of the
above, matter was restored to the AO
4) SAROJ RANI GUPTA
I.T.A. No. 1613/KOL/2017
Dtd 6.02.2019
Benefit of section 54F is
available even where-
i) the construction of the house is not
completed within the stipulated time and
ii) ‘A’ has purchased two independent adjacent units
by two separate agreements
Held,
Issue 1:
In order to
get the benefit under section 54F, the assessee need not complete the construction
of the house and occupy the same. It is enough if the assessee established that
the assessee had invested the entire net consideration within the stipulated
period.
Following
a) Madras
HC in the case of CIT vs Sardarmal Kothari [2008] 302 ITR 286
[ see also : Mrs. Seetha Subramanian vs ACIT [1996] 59
ITD 94 (Mad.)] – distinguished on facts
Delhi HC’s decision in the case of D.P.
Mehta vs CIT [2001] 251 ITR 529 where the assessee himself had admitted
that the construction put up was only a garage and service quarters and it was
not fit enough for occupation of the assessee. ]
b)
Bombay HC in the case of CIT vs Mrs. Hilla J.B. Wadia [1995] 216 ITR 376
(The material
test in the connection of purchase of a new flat was the domain over the flat
and the investment in it. In the given case, the assessee had acquired
substantial domain over the flat in question under the agreement with the
society coupled with the payment of almost the entire cost of construction
within a period of two years and thus he was eligible for benefit u/s 54.)
Issue 2:
ii) Benefit of section 54F if there are more than one residential house:
Held
“In support of this conclusion, the Assessing Officer
relied on the decision of Special Bench of ITAT, Mumbai in the case of Sushila
M. Jhaveri (supra). As rightly contended by the ld. Counsel for the assessee,
this issue also now stands covered in favour of the assessee by the decision of
the Hon’ble Karnataka High Court in the case of CIT –vs- Smt. K.G. Rukminiamma
(supra) and that of the Hon’ble Andhra Pradesh High Court in the case of CIT
–vs. - Syed Ali Adil (supra), wherein it was held that the expression “a
residential house” used in section 54 necessarily has to include buildings or
land appurtenant thereto and it cannot be construed as one residential house.
As further held in the said judicial pronouncements, section 54 only requires
that property purchased by the assessee out of sale proceeds should be of
residential nature and the fact that residential house consisted of several
independent units could not be an impediment for granting relief under the said
section, even if such independent units were situated side by side on different
floors and were purchased under separate sale deeds. Keeping in view the legal
position emanating from these judicial pronouncements, we are of the view that
the assessee is entitled for exemption under section 54F and the ld.
CIT(Appeals) is fully justified in allowing the claim of the assessee for such
exemption.”
Following-
a) CIT vs Smt. K.G. Rukminiamma – Karnataka HC- [2011] 331 ITR 211
(The context in which the expression “a residential house” is used in
section 54 shows that it was not the intention of the legislation to covey the
meaning that it refers to a single residential house. Had that been the case,
they would have used the word “one”. As in the earlier part of the provision,
the words used are buildings or lands which are plural in number and that is
referred to as “a residential house”, the original asset. An asset newly
acquired after the sale of the original asset also can be buildings or lands
appurtenant thereto, which also should be a residential house. Therefore the
later should not be construed as meaning singular. Being an indefinite article,
the said expression should be read in consonance with other words “buildings
and lands” and therefore the singular “a residential hosue” also permits use of
plural by virtue of section 13(2) of the General Clauses Act.)
b)Andhra Pradesh HC’s decision in the case of CIT,
Hyderabad vs Syed Ali Adil [2013] 352 ITR 418
[ Further
decisions for the aforesaid proposition
i) D. Ananda Basappa [309 ITR 329]
(Karnataka HC) held that when the flats are situated side by side and the
builder has effected modification of the flats to make it as one unit, the same
is entitled to exemption u/s 54, ii) Karnataka HC’s decision in the case of CIT vs Smt. K.G. Rukminiamma [2011] 196
Taxman 87/ [2010] 8 taxmann.com 121 held that the assessee had transferred
the residential house and purchased four flats in a single residential complex
and the four flats cannot be considered to be four residential houses., [ iii) K.G. Vyas (Mumbai Trib.) – 26 TTJ 491,
iv) P.C. Ramakrishna, HUF (Chennai ITAT)
– 107 TTJ 351, v) PremPrakash
Bhutani (Delhi Trib.) – 110 TTJ 440 held that section 54 only requires that
the property should be of residential nature and the fact that the residential
house consists of several independent units cannot be impediment to grant
relief u/s 54 although the units were on different floors.]
[However, amendment has been made in the
provision w.e.f A.Y: 2015-16 and the word ‘one’ has been substituted in place
of ‘a’ ]
5) STYLISH POLYMERS PVT. LTD.
I.T.A. No.
1466/Kol/2018 dtd 12.12.2018
Assessment Year:
2012-13
The appellant had furnished the requisite documents in support of
the transactions entered into by it in respect of foreign exchange derivatives.
Loss is allowable.
Following -
ACIT vs M/s Tirupati Awas P.Ltd. ITA No.
1560/Kol/2016 dated 28.03.2018 - deleted
disallowance of derivative loss based on Shri Sachet Saraf’s search statement.
The appellant had furnished the requisite documents in support of the
transactions entered into by it in respect of foreign exchange derivatives. The
AO had only relied upon the statement made by Mr. Sachet Saraf and no enquiry
had been conducted by him with either the broker or the MCX Stock Exchange to
verify the genuineness of the said transaction. It was also seen that the
statement of Mr. Sachet Saraf was retracted at a later point of time. It is
held that no additions can be made on the mere basis of a statement of a third
party, in the absence of corroborative material evidence.
[ Note : In M/s Chemex Goods Pvt. Ltd. vs ITO, Kolkata [ITA No. 2402/Kol/2017] [AY
2013-14], it was
held that the assessee had discharged the burden of proof that lay
on it by providing the requisite documents. (relied on M/s Tirupati Awas Pvt.
Ltd. as the facts are similar- distinguished on facts DCIT vs M/s DRP Trading & Investments Pvt.
Ltd., ITA No. 83/kol/2016, A.Y. 2012-13 ( adv decision ) as no margin money was
paid in the case of DRP (supra). ]
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