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657 orders · Page 10 of 14
The Tribunal held that the period of holding for capital gains is computed by including the date of purchase and sale. Therefore, holding shares for exactly 12 months results in short-term capital gains, not long-term.
The Tribunal observed that the assessee had been non-compliant before the first appellate authority and had not filed documentary evidence. However, considering the principles of natural justice, the Tribunal decided to give the assessee one more opportunity.
The Tribunal noted that the Ld. CIT(A) admitted a new stand from the assessee regarding property transaction consideration without confronting the AO and without obtaining a remand report. This violated Rule 46A of the Income Tax Rules.
The Tribunal noted that the tax effect of the appeal was Rs. 2,05,128/-, which was below the monetary limit for filing appeals as per the CBDT Circular No. 17/2019. Therefore, the appeal was not maintainable.
The Tribunal held that the period of holding for capital gains is computed by including the date of purchase and sale. Therefore, holding shares for exactly 12 months results in short-term capital gains, not long-term.
The Tribunal, relying on its previous judgments in the assessee's own case, ruled that the network fees are neither Royalty nor FTS under the Income Tax Act or Article 12 of the India-Netherlands DTAA, as the "make available" condition for FTS was not met and the payments were in the nature of reimbursement of cost. Consequently, the Tribunal directed the AO to delete the addition. A separate ground regarding the assessment being time-barred was not pressed by the assessee.
The Tribunal held that the end of justice requires that no one should be condemned unheard, and section 250(2) of the Act mandates affording a hearing to the appellant. Considering the spirit of section 250, the Tribunal was of the considered opinion that the interest of justice required an opportunity to be given to the assessee in all three appeals to present its case before the Assessing Authorities. The Tribunal found the explanation in the affidavit regarding non-receipt of notices and non-submission of responses to be justified, and the revenue had not brought anything contrary on record. Since no effective hearing had taken place, the matter was restored to the file of the AO with a direction to the assessee to file its response/reply/documents within 90 days. If the assessee failed to do so, the AO would be at liberty to dispose of the matter as per law. The appeals were allowed for statistical purposes.
The Tribunal, following its consistent previous decisions in the assessee's own case for earlier assessment years, held that the network fees received from DIPL are neither in the nature of Royalty nor Fees for Technical Services under the Income Tax Act or Article 12 of the India-Netherlands DTAA. Therefore, the impugned additions made by the AO were directed to be deleted.
The Tribunal held that the 'Reserve for Unexpired Risks' is not an unascertained liability to be added back for computing book profit under Section 115JB. It is a mandatory reserve created as per insurance regulations, representing future income, and not a provision for a future liability as contemplated under Section 115JB(2) Explanation 1(b) or (c). Furthermore, this reserve was not debited to the Profit & Loss account. The Tribunal also noted that the provision for unexpired risk was offered to tax in subsequent years, negating the non-taxing argument.
The Tribunal held that denying foreign tax credit solely on the ground of not filing Form 67 before the due date, without giving the appellant an opportunity to be heard, is not justified. The AO's action was deemed not justified.
The Tribunal found that the AO's investigation was unsatisfactory and incomplete, particularly regarding the role of the assessee's father who handled the transactions. The Tribunal remitted the matter back to the AO for fresh adjudication.
The Tribunal held that when a revision order under Section 263 is annulled by the ITAT, any consequential assessment order passed pursuant to it cannot survive. The CIT(A) correctly followed the ITAT's decision and allowed the assessee's appeal.
The Tribunal noted that the agreement for sale treated both flats as one unit and noted a contradiction between the AO's reliance on the core plan and the developer's affidavit and revised plan submitted by the assessee. The Tribunal decided to remit the matter back to the AO for physical verification of the flats.
The Tribunal found that the AO's reasons for reopening the assessment were erroneous and perverse, lacking jurisdiction under Section 148 of the Act. The AO failed to provide specific documents or evidence to prove the transaction was made by the assessee, and the CIT(A) passed a cryptic order without considering the assessee's submissions.
The Tribunal held that the Commissioner (Appeals) was justified in considering the additional evidence (confirmations) filed by the assessee, as their powers are co-terminus with the AO and they can direct production of documents for a just disposal of the appeal. The Tribunal found no reason to contradict the Commissioner's findings.
The Tribunal held that additional evidence submitted by the assessee, including financial statements and bank records, was crucial for a fair decision. Therefore, to meet the ends of justice, the order of the CIT(A) was set aside.
The Tribunal noted that the PAN discrepancy, specifically the absence of 'Shree' in the name, was the root cause of the issue. After verifying that an amended PAN card with the correct name ('Shree Lohana Mahaparishad') has been issued, the Tribunal restored the case to the Assessing Officer (AO) to consider the exemption claims under sections 11 & 12 after due verification.
The Tribunal held that the assessee was denied a reasonable opportunity to present evidence before the CIT(E). Therefore, the matter is remitted back to the CIT(E) to grant the assessee another chance to be heard regarding the registration under section 80G(5).
The Tribunal held that while the purchases were bogus, the entire amount should not be added to the income. Following precedent, it directed the Assessing Officer to apply a Gross Profit (GP) rate of 3% on the alleged bogus purchases to compute the assessee's income.
The Tribunal held that the CIT(A) denied the assessee a reasonable opportunity of hearing, which is a violation of natural justice. The assessee was prevented from submitting evidence.
The Tribunal noted that the AO did not provide adequate opportunity for furnishing evidence and that the CIT(A) passed an order in the name of a deceased assessee, rendering it a nullity. The Tribunal restored the issues to the AO for fresh examination after providing adequate opportunity to the assessee.
The tribunal noted that the CIT(A) had not adjudicated the issues on merits. In the interest of natural justice, all issues were restored to the CIT(A) for adjudication on merits. A cost of Rs. 2000/- was imposed on the assessee for non-cooperation.
The Tribunal noted that the assessee was not afforded an effective hearing by the CIT(A), despite multiple notices. It was acknowledged that due to the COVID-19 pandemic, there was a possibility that the assessee was prevented from responding. Therefore, the Tribunal decided to give the assessee one more opportunity to present their case.
The Tribunal considered the rival submissions and the assessee's affidavit. It noted that the assessee, an 80-year-old super senior citizen, faced technological challenges and health issues that hindered their ability to effectively participate in the faceless proceedings before the CIT(A). The Tribunal acknowledged that Section 250(2)(a) of the Act grants the appellant the right to be heard. Finding that the end of justice required an effective hearing and that the revenue had not presented any contrary evidence to the affidavit, the Tribunal set aside the impugned order. The matter was restored to the file of the CIT(A) with a direction to the assessee to present their case and file supporting documents within 60 days from the date of the order. The appeal was allowed in these terms. The Tribunal did not decide issues 2 through 6.
The Tribunal observed the significant delay in adjudication and the peculiar circumstances, including the initial hearing period coinciding with the COVID-19 pandemic. Recognizing the need for a proper adjudication of the issues, the Tribunal decided to remand the case back to the Commissioner.
The assessee sought to withdraw the appeal because a similar appeal for the same assessment year had already been decided, and withdrawing this appeal would prevent duplication. The Revenue had no objection to the withdrawal.
The Tribunal held that the assessee had discharged the onus under Section 68 by providing confirmations, ledger accounts, and bank statements, and that the loans were repaid with TDS. The disallowance of interest on older loans was also deemed unjustified as the loans were accepted as genuine in prior years.
The Tribunal condoned the delay in filing the appeal subject to a deposit of Rs. 1100/-. The Tribunal noted that the addition made under section 143(1) without proper intimation to the assessee is unsustainable. Furthermore, the assessee had incurred a long-term capital loss, not a gain, which was accepted by the AO in the intimation.
The Tribunal noted that the assessee failed to comply with multiple notices from the CIT(A) without providing a satisfactory explanation, leading to an ex-parte assessment and appeal order. However, acknowledging that the assessee did not get an opportunity to present evidence before any authority, the Tribunal restored the issues to the CIT(A) for adjudication on merits.
The assessee's counsel requested withdrawal of the appeal due to duplication of filing, as a similar appeal had already been disposed of. The Departmental Representative had no objection.
The Tribunal observed that the appellant did not respond to multiple notices from the AO and CIT(A). Despite this, considering the peculiar facts, the Tribunal decided to grant two more effective opportunities and remitted the matter back to the AO.
The Tribunal held that payments to tax residents of Thailand were not taxable in India as they did not have a Permanent Establishment and did not fall under the Fee for Technical Services clause. However, payments to tax residents of France were subject to withholding tax and the disallowance was upheld.
The Tribunal decided on several issues concerning the disallowance of professional fees under Section 40(a)(i) for non-deduction of TDS. For tax residents of various countries including USA, Australia, and several others listed in the judgment, the Tribunal concurred with the CIT(A) that the Assessee was not obligated to withhold tax as the payments did not fall under taxable categories as per the respective DTAAs or were not liable to tax in India. Consequently, the disallowances made by the Assessing Officer were deleted. However, for tax residents of France, the Tribunal held that the services fell within the ambit of Article 13 of the DTAA, attracting Section 195 obligations. The Assessee's failure to comply led to a correct disallowance by the Assessing Officer, thus overturning the CIT(A)'s decision and reinstating the disallowance for France. Regarding professional fees aggregating to INR 39,87,237/- (at specific Sl. Nos.), the issue was remitted back to the CIT(A) for adjudication after obtaining a remand report from the Assessing Officer. The disallowance of INR 40,54,71,001/- for remittances to KPMGI was upheld as per the CIT(A)'s order, dismissing the Revenue's grounds. Similarly, an ad-hoc disallowance on advertising and publicity expenses was also dismissed, upholding the CIT(A)'s deletion. The Assessee's cross-objections were allowed, and Revenue's grounds were partly allowed.
The Tribunal noted that the assessee had preferred the settlement of dispute under the Vivad Se Vishwas Scheme and Form No.5 was issued accordingly. Based on this, the assessee's appeal before the CIT(A) was allowed.
The Tribunal held that payments to tax residents of Thailand were not taxable in India as they did not have a Permanent Establishment and did not fall under the Fee for Technical Services clause. However, payments to tax residents of France were subject to withholding tax and the disallowance was upheld.
The Tribunal heard both parties and perused the material on record. The core issue revolved around the disallowance made by the Assessing Officer under Section 40(a)(i) of the Act for failure to deduct tax at source under Section 195 on professional fees paid to non-residents. The assessee argued that tax was not deductible as the payments were not taxable in India, citing various grounds related to the nature of services, utilization of services, and absence of a Permanent Establishment, referencing relevant DTAA articles. The assessee also relied on previous ITAT orders concerning its member firms. The Tribunal noted that the disallowances pertained to payments made to various non-resident entities. The judgment indicates that the Tribunal considered the rival submissions and the written submissions of both parties. The specific finding on each issue and the final operative directions are not fully detailed in the provided excerpt, but the context suggests the Tribunal is adjudicating on the validity of the disallowances under Section 40(a)(i) based on the taxability of the payments in India.
The Tribunal noted that the CIT(A) passed an ex-parte order without giving adequate opportunity to the assessee and without allowing cross-examination of individuals whose testimony was relied upon. The Tribunal found that the issue needed further examination, especially concerning the AO's limited inquiry and the assessee's failure to respond to summons.
The Tribunal held that the fixed deposits were made for availing banking facilities and were not out of surplus funds. The interest earned on these deposits had a direct nexus with the assessee's business activities, and therefore, it was rightly netted off against interest expenses. The Tribunal found no infirmity in the CIT(A)'s order.
The Tribunal found contradictions in the facts recorded by the AO in the assessment order, the reasons for reopening, and the actual return filed by the assessee. The AO was also unsure about the nature of the transaction and the relevant section for addition, indicating a lack of proper enquiry.
The Tribunal found that the assessee was consistently non-compliant before the lower authorities. While the assessee claimed non-receipt of notices due to an outdated email address, it was also noted that the assessee did not intimate any change in communication address. The Tribunal decided to restore the matter back to the assessing officer to allow the assessee to furnish details and provide an opportunity for a hearing.
The Tribunal noted that the CIT(A) had dismissed the assessee's appeal ex-parte due to non-compliance with notices. However, considering the principles of natural justice and the possibility of various reasons for non-appearance, the Tribunal decided to provide one more opportunity to the assessee.
The Tribunal noted that the assessee purchased shares through banking channels, got them dematerialized, and sold them on the stock exchange through a registered broker, with sale consideration received through banking channels. The AO had not faulted any of the purchase/sale documents and had not conducted independent inquiry, relying solely on a generalized report.
The Tribunal held that the CIT(A) was correct in observing that factual averments made by the assessee, such as the absence of a Permanent Establishment (PE) or fixed base in India and the income source being outside India, required verification. However, the CIT(A) erred in simply setting aside the issue to the AO. Therefore, the Tribunal set aside the CIT(A)'s order to that extent and directed the CIT(A) to adjudicate the issue after obtaining a remand report from the AO, granting the assessee a reasonable opportunity of being heard. Regarding payments to UK residents, the Tribunal concurred with the CIT(A)'s deletion of disallowance under Section 40(a)(i), finding no infirmity. Similarly, for payments to Australian residents, the Tribunal upheld the CIT(A)'s deletion of disallowance, as the payments were not liable to tax in India. The disallowance concerning KPMGI was also upheld as per previous Tribunal decisions for other assessment years. The ad-hoc disallowance on advertising expenses was also found to be without infirmity in the CIT(A)'s order. The Tribunal allowed the Revenue's grounds partly, the Assessee's cross-objections, and the Assessee's grounds for statistical purposes.
The Tribunal held that the disallowance under Section 40(a)(i) of the Income Tax Act, 1961, was not warranted. The Tribunal noted that the Assessee had paid professional fees to various non-resident entities. The Assessing Officer had disallowed the deduction for these fees, contending that the Assessee had failed to deduct tax at source under Section 195, as the payments were taxable in India as Fee for Technical/Included Services (FTS) or Other Income, either under the Act or the respective Double Taxation Avoidance Agreements (DTAAs). The Assessee argued that TDS was not required because the payments were not taxable in India. The Tribunal, in its decision, condoned the delay in filing the cross-objections by the Assessee, finding the reasons to be bonafide and the grounds raised to be legal pleas not requiring fresh fact examination. The Tribunal's reasoning implies a finding that the Assessee's arguments regarding the non-taxability of these payments in India under the relevant DTAA provisions were accepted, thereby negating the obligation to deduct tax at source. Consequently, the disallowance made by the Assessing Officer under Section 40(a)(i) was deleted.
The Tribunal condoned the delay in filing the assessee's cross-objections, finding the reasons provided, related to the Supreme Court's decision in Nestle SA concerning the MFN clause, to be reasonable and bonafide. The Tribunal noted that the grounds raised in the cross-objections were legal pleas not requiring fresh factual examination. The appeals and cross-objections for Assessment Year 2013-14 were designated as lead matters, with the findings to apply mutatis mutandis to other assessment years (2012-13, 2014-15, 2015-16, 2016-17, and 2017-18). The judgment does not record the specific findings on the substantive issues of taxability of professional fees or the disallowance under Section 40(a)(i) for any of the assessment years, as the provided text only covers the preliminary procedural aspects and the framing of the issues.
The Tribunal held that the provisions of Double Taxation Avoidance Agreements (DTAAs) are to be applied in conjunction with the Income Tax Act, and where DTAA provisions are more beneficial to the assessee, they shall prevail. It also noted that fees for technical services (FTS) are a species of business profits and are governed by specific DTAA articles.
The Tribunal held that payments to tax residents of Thailand were not taxable in India as they did not have a Permanent Establishment and did not fall under the Fee for Technical Services clause. However, payments to tax residents of France were subject to withholding tax and the disallowance was upheld.
The Tribunal condoned the delay in filing the cross-objections by the assessee, finding the reasons provided (necessitated by the Supreme Court's decision in Nestle SA regarding the MFN Clause) to be reasonable and the grounds raised to be legal pleas not requiring fresh fact examination. The appeals and cross-objections for Assessment Year 2013-14 were taken as lead matters, with the findings to apply mutatis mutandis to other assessment years (2012-13, 2014-15, 2015-16, 2016-17, and 2017-18). The judgment excerpt provided does not contain the Tribunal's final decision on the substantive issues of disallowance under Section 40(a)(i) and the taxability of payments to non-residents. The Tribunal noted that the CIT(A) had dealt with the grounds raised in all appeals. The operative part of the decision on the merits of the disallowance is not present in the provided text. Therefore, the finding on each issue and the ratio decidendi are not ascertainable from this excerpt.
The Tribunal held that the penalty imposed was not sustainable on legal grounds. Firstly, regarding the procedural aspect, while the assessee raised a ground about the lack of opportunity of hearing, the judgment focuses on the substantive issue of the penalty's validity. Secondly, concerning the penalty under section 271(1)(c), the Tribunal noted that the Assessing Officer had issued the notice without mentioning the specific limb (concealment of income or furnishing inaccurate particulars) and that this defect was also present in the assessment order. The Tribunal found that the issue was entirely legal and had been decided by the Hon’ble Jurisdictional High Court in Mohammed Farhan A Shaikh (supra). The Tribunal also referred to the decision in CIT V/s SAS’s Emerald Meadows, where the Special Leave Petition (SLP) filed by the department was dismissed by the Hon’ble Supreme Court. Following these judicial precedents, the Tribunal concluded that the penalty notice and the assessment order lacked specificity regarding the offense, and therefore, the impugned penalty was not sustainable. Consequently, the penalty was deleted, and the appeal of the assessee was allowed.
The Tribunal noted that the assessee provided details of his income sources, including professional fees, bank interest, and share trading, along with investment details, to the CIT(A). However, the CIT(A) did not consider these details on merit. Therefore, the Tribunal restored the issue to the AO for fresh adjudication.