K.P. Varghese v. ITO

Kaybee P.Ltd, Mumbai vs. ITO 10(1)(3) (Erstwhile Juridictional ITO 8(2)(2), Mumbai

In the result, the appeal is allowed in the terms indicated above

…go must not come in the way of rectifying a mistake that we have committed in past and the only relevant question that we have to ask ourselves is whether it is permissible in law to rectify the mistake so committed. In the case of K P Verghese vs ITO [(1981) 131 ITR 597 (SC)], Hon’ble Supreme Court were dealing with a situation in which the construction of newly inserted statutory provisions came up for consideration. It was in this context that Their Lordships observed that the “circulars of the CBDT are, as we shall presently point out, binding on the tax department in administering and executing the provision…

Hiranandani Industrial Enterprises, Mumbai vs. Assistant Commissioner of Income Tax Circle-17(1), Mumbai

In the result, the appeal is allowed

Bench: Shri Ravish Sood () & Shri N.K. Pradhan () Assessment Year: 2010-11 Hiranandani Industrial Enterprises, The Assistant Commissioner Of 514, Dalamal Towers, 211, F P J Vs. Income Tax, Circle-17(1), Marg, Nariman Point, Mumbai- Room No. 117, Aayakar Bhavan, 400021 Mumbai-400020. Pan No. Aaafh1372E Appellant Respondent

…as partly allowed.” 5. Before us, the Ld. counsel for the assessee relies on the decision in ITO v. M/s Aditya Narain Verma (HUF) (ITA No. 4166/Del/2013) for AY 2009-10; ACIT v. Tarun Agarwal (ITA No. 343/Agra/2017) for AY 2013-14; K.P. Varghese v. ITO (1981) 131 ITR 597 (SC) ; UoI v. A. Sanyasi Rao (1996) 219 ITR 330 (SC) ; Karanpura Development Co. Ltd. v. CIT (1962) 44 ITR 362 (SC). Also the Ld. counsel files a copy of the written submission furnished before the AO and CIT(A). 5.1 Referring to para 15 of the order of the Ld. CIT(A), the Ld. counsel submits that as per section 251 of the Act, the CIT(A), in an…

ITO 5(1)(2), Mumbai vs. Balee Plastics P. Ltd, Mumbai

In the result, both, the appeal of Revenue as well as CO of the assessee are dismissed

Bench: Sri Mahavir Singh, Jm & Sri Manoj Kumar Aggarwal, Am आयकर अपील सुं./ Ita No. 7524/Mum/2012 (यनर्ाारण वर्ा / Assessment Year 2009-10) The Income Tax Officer Balee Plastics Pvt. Ltd., Ward 5(1)(2), Peninsula Business Park Bhavan, M.K. Road, B Wing, 13 Floor, Senapati बनाम/ Mumbai-400 020 Bapat Marg, Lower Parel Vs. (West), Mumbai-400 013 (प्रत्यर्थी/ Respondent) (अपीलार्थी / Appellant) स्र्थायी लेखा सुं./Pan No. Aaacb5172D प्रत्याक्षेप सM./ Co No. 16/Mum/2014 (Arising In Ita No. 7524/Mum/2012 For Ay 2009-10) Balee Plastics Pvt. Ltd., The Income Tax Officer Peninsula Business Park Ward 5(1)(2), B Wing, 13 Floor, Senapati Bhavan, M.K. Road, बनाम/ Bapat Marg, Lower Parel Mumbai-400 020 Vs. (West), Mumbai-400 013 (आपत्ति करनेवाला / Cross Objector) (प्रत्यर्थी/ मूल अपीलार्थी / Respondent/Orig. Appellant) अपीलार्थी की ओर से / Appellant By : Ms. Kavita P. Kaushik, Dr प्रत्यर्थी की ओर से / Respondent By : Shri Nitesh Joshi, Ar सुनवाई की तारीख / Date Of Hearing: 28.11.19 घोर्णा की तारीख / Date Of Pronouncement: 28.11.19

…Pvt. Ltd. ITA No.7524/Mum/2012 & CO. No. 16/Mum/2014 appellant to prove that the appellant has paid the disputed cash transaction of ₹1.50 crore to Shri Narendra Kumar Sankla and Shri Premchand Sankla. Hon'ble Supreme Court in the case of KP Varghese V/s ITO 131 ITR 597 (SC) has categorically declared that in these circumstances no presumption of cash payment can be validly made by the assessing officer.” Aggrieved, against the order of CIT(A) deleting the addition of ₹1.50 crores, Revenue came in appeal before Tribunal. 7. We have heard the rival contentions and gone through the facts and circumstances of the…

Sitel India Ltd, Mumbai vs. DCIT RG 8(3), Mumbai

In the result the appeal of the assessee is allowed

Bench: Shri Shamim Yahya (Am) & Shri Pawan Singh (Jm) Sitel India Ltd. Dcit, Range-8(3), Room No. 217, 2Nd Floor, 501, Wing A &B, Boomerang, Chandivali Farm Vs Aayakar Bhavan, M.K. Marg, Road, Andheri (E) Mumbai-400020 Mumbai-400 072 Pan : Aafcs1297M Appellant Respondednt

…assessee can prove his honesty, because honesty, in practical terms, only implies lack of dishonesty, and proving not being dishonest is essentially proving a negative, which as the Hon'ble Supreme Court has observed in the case of K.P. Verghese v. ITO [1981] 131 ITR 597/7 Taxman 13 is almost impossible. However, as the expression 'good faith' is used along with 'due diligence' which refers to 10 ITA 1675/Mum/2013 'proper care'. It is also essential that not only the action of the assessee should be in good faith but also with proper care. An act done with due diligence would mean the act done with as much as ca…

Tatva Gloabal Environment Ltd, Mumbai vs. ITO 9(3)(3), Mumbai

In the result the appeal of the assessee is partly allowed and the appeal

Bench: Shri Pawan Singh & Shri Rajesh Kumartatva Global Environment Ltd Vs Ito-9(3)(3), (Now Known As Tatva Global Aayakar Bhawan, M.K. Road, Environment Pvt Ltd) Mumbai Uniphos House, C D Marg, Opp Madhu Park, Khar (W) Mumbai 400 052 Pan : Aaics1718A Appellant Respondednt Dcit, Cent.Cir.6(3), Vs Tatva Global Environment Ltd Mumbai (Now Known As Tatva Global Environment Pvt Ltd) Uniphos House, C D Marg, Opp Madhu Park, Khar (W) Mumbai 400 052 Pan : Aaics1718A Appellant Respondednt

…n for the shares was received through banking channel. This object behind introduction of section 56(2)(vii) should be borne in mind. In this regard, reliance may be placed on the Judgment of Supreme Court in the case of K P Varghese v. ITO [1981] 7 Taxman 13/131 ITR 597 wherein the Apex Court at Page 609 in the context of section 52(2) of the Act held as under: "The object and purpose of sub-section (2), as explicated from the speech of the Finance Minister, was not to strike at honest and bona fide transactions where the consideration for the transfer was correctly disclosed by the assessee but to bring within…

JCIT (OSD)(It) 3(2)(1), Mumbai vs. Merrill Lynch Capital Market, Espana Sasv, Mumbai

In the result, the appeal is dismissed

…It is only elementary that no one can be expected to prove a negative, and, therefore, the onus cannot be on the assessee to demonstrate that these conditions are not satisfied. As observed by Hon’ble Supreme Court, in the case of K P Varghese Vs ITO [(1981) 131 ITR 597 (SC)], “to throw the burden of …(proving a negative)….. would be to cast an almost impossible burden”. The onus is thus clearly on the Assessing Officer to prove that the conditions of article 14(4) are satisfied was thus on the Assessing Officer. 36. No material is brought on record to discharge the onus, so cast on the Assessing Officer, before…

JCIT (OSD)(It) 3(2)(1), Mumbai vs. Merrill Lynch Capital Market, Espana Sasv, Mumbai

In the result, the appeal is dismissed

…It is only elementary that no one can be expected to prove a negative, and, therefore, the onus cannot be on the assessee to demonstrate that these conditions are not satisfied. As observed by Hon’ble Supreme Court, in the case of K P Varghese Vs ITO [(1981) 131 ITR 597 (SC)], “to throw the burden of …(proving a negative)….. would be to cast an almost impossible burden”. The onus is thus clearly on the Assessing Officer to prove that the conditions of article 14(4) are satisfied was thus on the Assessing Officer. 36. No material is brought on record to discharge the onus, so cast on the Assessing Officer, before…

Lic Housing Finance Ltd, Mumbai vs. DCIT Cir 2(2), Mumbai

Bench: Hon’Ble Shri Mahavir Singh, Jm & Hon’Ble Shri Manoj Kumar Aggarwal, Am आयकरअपील सं./ I.T.A. No.5434/Mum/2011 (िनधा"रण वष" / Assessment Year:2004-05) Lic Housing Finance Limited Dcit-Circle -2(2) 2Nd Floor, Bombay Life Bldg. बनाम/ Aaykar Bhavan, M.K. Marg 45/47 Veer Nariman Road Mumbai- 400 020. Vs. Fort, Mumbai-400 023. "थायीलेखासं./जीआइआरसं./Pan/Gir No. Aaaci-5375-F (अपीलाथ"/Appellant) (""थ" / Respondent) : & आयकरअपील सं./ I.T.A. No.5435/Mum/2011 (िनधा"रण वष" / Assessment Year:2005-06) Lic Housing Finance Limited Dcit-Circle -2(2) 2Nd Floor, Bombay Life Bldg. बनाम/ Aaykar Bhavan, M.K. Marg 45/47 Veer Nariman Road Mumbai- 400 020. Vs. Fort, Mumbai-400 023. "थायीलेखासं./जीआइआरसं./Pan/Gir No. Aaaci-5375-F (अपीलाथ"/Appellant) (""थ" / Respondent) : Assessee By : Shri H.P. Mahajani- Ld. Ar Revenue By : Shri Anadi Varma - Ld. Cit-Dr सुनवाई की तारीख/ : 30/07/2019 Date Of Hearing घोषणा की तारीख / : 04/10/2019 Date Of Pronouncement

…ly withdrawn. The court also observed that the circulars cannot detract from the Act. The decision of the Constitution Bench of this court in Navnit Lal (C.) Javeri v. K.K. Sen, AAC [1965] 56 ITR 198 , or the subsequent decision in K.P. Varghese v. ITO [1981] 131 ITR 597 (SC), also do not appear to have been pointed out to the court. Since the later circular of October 9, 1984, was not pointed out to the court, the court naturally proceeded on the assumption that the benefit granted under the earlier circular was no longer available to the assessee and those circulars could not be resorted to for the purpose of o…