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Wednesday, January 26, 2011

Revised Return - Concealment of Income u/s 271(1)(c)

Revised Return - Concealment of Income u/s 271(1)(c)

Narendra Pratap Bhalla vs ACIT (ITAT)
Dated: 7th Jan 2011
S. 271(1)(c)- Revised Return - Whether AO was erred on facts and in law in applying the provisions of section 271(1)(c) of the Act in levying penalty where assessee have furnished all the documents relating to the gift, in the shape of gift deeds along with the affidavit of the donors, copy of their PAN cards, acknowledgement of returns filed by the donors and the copies of balance sheet proving the genuineness of the gift but since the assessee was not keeping good health and did not want any confrontation and unnecessary litigation with the department, so to attain peace of mind, the return of income was revised surrendering the amount of `10,00,000/- which was earlier shown as gifts. Held, No

Discussed:

1. Dy. CIT vs. Tarun Agarwal 2009 (13) MTC 831, the ITAT Lucknow Bench 'A' held that "the assessee had surrendered the amount before any specific detection of undisclosed income or even before the issue of notice. Even though a general enquiry was going on and notices had been issued to some of his relatives and the amount might have been surrendered because of compulsion of circumstances, it was not sufficient to penalise the assessee as the factum of detection was not there."

2. Qudai International vs. Income Tax Officer 2009 (13) MTC 622 (Trib), the ITAT Lucknow Bench 'A' held that "mere raising of query by the Assessing Officer did not amount to detection of concealment. It cannot therefore, be said that the revised return was filed after detection of concealment and was not voluntary. The term "detection" itself implies the Assessing Officer had reached a conclusion but the query raised by the Assessing Officer was only first step in detection of concealment. If the assessee voluntarily revised the return, it could not be said that it does not fulfill requirements of section 139(5) of the Act."


IN THE INCOME TAX APPELLATE TRIBUNAL, LUCKNOW BENCH "B", LUCKNOW
BEFORE SHRI H. L. KARWA, HON'BLE VICE PRESIDENT AND SHRI N. K. SAINI, ACCOUNTANT MEMBER
I.T.A. No.309/Luc/10 Assessment year: 2001-2002
Shri Narendra Pratap Bhalla,                Vs.           A.C.I.T.-3,
7/58, Tilak Nagar,                                                     Kanpur.
Kanpur.
PAN:AESPB4708D
(Appellant)                                                                (Respondent)
I.T.A. No.310/Luc/10 Assessment year: 2001-2002
Smt. Aparna Singh,                                Vs.           A.C.I.T.-3,
7/58, Tilak Nagar,                                                     Kanpur.
Kanpur.
PAN:AESPB4708D
(Appellant)                                                                (Respondent)
                                         Appellant by    : Shri Rakesh Garg, Advocate Respondent by: Ms. Saifali Swaroop, D. R.
O R D E R
PER N. K. SAINI:
These two appeals, filed by the assessees, are directed against the separate orders of CIT(A)-II, Kanpur dated 15/02/2010 in the case of Smt. Aparna Singh and 18/02/2010 in the case of Shri Narendra Pratap Bhalla. Since the issue involved in both these appeals is similar having identical fact and the appeals were heard together so these are being disposed of by this consolidated order for the sake of convenience. First we will deal with the appeal in I.T.A. No.310/Luc/10 in the case of Smt. Aparna Singh. In this appeal the assessee has raised the following grounds:
"1. Because the CIT(A) has erred on facts and in law in confirming the levy of penalty of `3,51,000/- u/s. 271(1)(c) of the Act.
2.            Because on a proper consideration of facts and circumstances of the case, the assessee having neither concealed his income, nor furnished inaccurate particulars thereof, the CIT(A) as well as the Assessing Officer both have erred on facts and in law in applying the provisions of section 271(1)( c) of the Act in levying penalty of `3,51 ,000/-.
3.            Because the penalty order passed u/s 271(1)(c) is without jurisdiction bad in law, void ab initio and be quashed.
4.            Because the CIT(A) has not considered the explanation as well as the facts of the case, and has erroneously held that the assessee is liable for penalty u/s. 271(1)(c) of the Act."
2. From the above grounds it would be clear that the only grievance of the assessee relates to the confirmation of penalty of `3,51,000/-levied by the Assessing Officer u/s 271(1)(c) of the Act.
3. The facts related to this issue, in brief, are that the assessee filed her return of income u/s 139(1) of the Act on 5th October 2001 declaring  an  income  of  `23,08,457/-.     The  case  was  selected for scrutiny. During the course of assessment proceedings, the Assessing Officer asked the assessee to file the details of gift received of `5,00,000/- on 01/05/2000 and `5,00,000/- on 02/05/2000 along with the supporting documents to prove the genuineness of transaction, identity and creditworthiness of the donor. The assessee, vide letter dated 31/12/2002, enclosed the gift deeds and proof of filing of return of income with the Income tax department. The Assessing Officer was not satisfied. He again asked the assessee to prove the identity and creditworthiness of the donors and genuineness of the transactions of gifts. Thereafter, the assessee filed a revised return of income on 13/03/2003 wherein the said gifts totaling to `10,00,000/- had been offered to tax by stating as under:
"That while filing my return, the above mentioned documents had given me the impression that as per law I will prove the identity of the donor, genuineness of the transactions and capacity of the donor. However, I have been advised by my legal advisor that the department due to one reason or the other may not accept the said gift and there may be prolonged litigation on this point.
That since I am not keeping good health in these days, I do not want to fall in unnecessary litigation and to attain peace of mind, I have voluntarily suo-motto and in good faith offered the said amount to tax."
3.1     The Assessing Officer finalized the assessment on 28/03/2003 by observing as under:
"Assessee had taken gift of `20,00,000/- and out of this `10,00,000/- was taken from her mother Smt. Kamlani Bhalla. Besides, gift of `5,00,000/- each was statedly taken from Shri Gajanand Garg and Shri Amit Goyal. However, when asked to prove the identity and creditworthiness of the donor and the genuineness of the transactions, the revised return was filed on 13.03.2003 surrendering this gift worth `10,00,000/-"
3.2     In the computation of income (in the assessment order) the Assessing Officer had added `10,00,000/- separately to the income of the assessee and initiated the penalty proceedings and levied the penalty u/s 271(1)(c) of the Act.
4. Being aggrieved the assessee carried the matter to the learned CIT (A) who pointed out that while deciding the appeal of the assessee, the Assessing Officer was requested to make certain enquiries by the learned CIT (A) on the following directions:
"The Appellant may also be asked to give the details of the donor and she should be confronted with the fact that a person who has gifted a sum of `5,00,000/- cannot be stranger to her and therefore, she was duty bound to give his whereabouts."
4.1     The Assessing Officer, on the direction of the learned CIT (A), sent letters to the alleged donors for verification.    One such letter, addressed to one of the donors namely Shri Amit Kumar Goel, was returned back by the postal authorities with the remark that there was no such person.  The Assessing Officer made the enquiries with the assessee who replied as under:
"That without prejudice to the above submissions, it is again humbly submitted that I have deposited the tax on these credits before any adverse inference was drawn by dept and on suo motu on my own."
4.2     Thereafter the Assessing Officer sent a letter to Mr. Gajanand Garg, which was returned back by the postal authorities with the remark "not found".   The Assessing Officer again asked the assessee for various details.  In response to that the assessee, vide letter dated 22/09/2006 submitted as under:
"When I have offered for tax the gift amount, then in my opinion there is no requirement lies on me for producing and confronting with the fact the person who had given me gift, though all their whereabouts have already been submitted before your honour. Your honour may call them directly or may make the enquiries directly from them."
4.3 According to the learned CIT (A), in the present case the assessee could not prove the identity of the donors. He also pointed out that the documents related to the donors filed by the assessee revealed that Shri Gajanand Garg had total income of `53,160/- in the assessment year 1999-2000 and had shown withdrawal of `28,000/-whereas Shri Amit Kumar Goel had total income of `52,110/- and had shown annual withdrawal of `30,000/-.   He also pointed out that the  computation of income/return of the alleged donors, as filed by the assessee, pertained to financial year 1998-99 whereas the so called gift was given only in financial year 99-2000. thus, those documents had no evidentiary value. According to the learned CIT (A), the assessee had not brought any material on record which could indicate as to how these persons were related to the assessee or as to how there was so much love and affection between them. According to the learned CIT (A), the act of concealment/furnishing of the inaccurate particulars was complete when original return duly verified by the assessee was filed before the department. As regards to the revised return filed on 13/03/2003, which included a sum of `10,00,000/- as income from other sources, the learned CIT (A) pointed out that the revised return was not filed suo motu and/or voluntarily by the assessee. It was filed only when the Assessing Officer had required the assessee to furnish the requisite details. He was of the view that section 139(5) does nothing more than to permit an assessee where it makes a genuine omission or wrong statement to file a revised return in time before the assessment is made. This could only mean that the right to file a revised return can be exercised to cure an omission or wrong statement when it was inadvertent or accidental and not deliberate and such revised return does not save the consequences of knowingly filing a false or incorrect return. The reliance was placed on the following case laws:
                  (i)               Hakam Singh & Others vs. CIT 124 ITR 232 (All)
(ii)              Radhey Shyam vs. Addl. CIT [2004] 123 ITR 124 (All)
(iii)             Ravi & Cross Objection. Vs. ACIT [2004] 271 ITR 287 (Mad)
                  (iv)             F. C. Agarwal vs. CIT [1975] 102 ITR 410 (Gau)
(v)              Agarwal (G.C.) Vs Commissioner of Income-tax  186 ITR 571 (SC)
                 (vi)             Rajan (K.M.), Rajan and Company Vs Commissioner of Income-tax 186 ITR 376 (Ker)
                 (vii)            Sujatha Rubbers Vs Income-tax Officer 194 ITR 355 (AP)

4.4 The learned CIT (A) also referred to the Explnation 1 and 1(b) to section 271(1)(c) of the Act and stated that the said amendments put further onus on the assessee to prove that the explanation furnished by him was bonafide. In this regard, he also made a reference to Board's Circular No. 469 dated 23/09/1986. According to the learned CIT (A), the expression "concealment of income" in its general sense and grammatical meaning, implies that an income is being hidden, camouflaged or covered up so that it cannot be seen, found, observed or disconcerted. According to him the assessee had brought in its undisclosed income through the device of "gifts" which is a non-taxable receipt. He also observed that the expression 'inaccurate' refers to 'not in conformity with the fact or truth' and that is the meaning which is relevant in the context of 'furnishing of inaccurate particulars' and that the expression 'particulars' refers to facts, details, specifies, or information about someone or something. According to him, the plain meaning of the expression 'furnishing of inaccurate particulars of income' implies furnishing of details or information about income which are not in conformity with facts or truth. In the instant case, the assessee showing that she received "gift" was certainly furnishing of inaccurate particulars when in fact there was no such genuine gift, therefore, the assessee failed to advance any reasonable and bonafide explanation with respect to the alleged gifts; rather by accepting the gifts as her income. It has been proved beyond doubt that these so called "gifts" were non-genuine ab initio and filing of the so called "revised return" would not save the consequences of the penal provision. The reliance was placed on the decision of the ITAT, Ahmedabad Bench 'B' in the case of Harilal Thakercy Thakkar Vs. CIT, reported in 87 TTJ (Ahd.) 311. The learned CIT (A) confirmed the action of the Assessing Officer.   Being aggrieved, the assessee is in appeal.
5. The learned counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the return of income of the assessee was due on 31/10/2001 and the return was filed on 05/10/2001 which was processed u/s 143(1) on 23/11/2002 and the assessee revised the return on 13/03/2003 u/s 139(5) which was within the time and the Assessing Officer thereafter issued another notice u/s 143(2) of the Act. It was further submitted that in the said revised return the assessee suo motu surrendered the gift on the ground that she was not keeping good health and did not want to enter or to fall in unnecessary litigation. It was stated that the tax on the surrendered amount was also paid before completion of the assessment. It was contended that in the revised return the assessee declared the income of `33,08,457/- while the income was assessed u/s 143(3) on an income of `33,11,960/-, so there was addition of `3,500/- only, which was on account of car expenses and registration charges. It was stated that the Assessing Officer had not discussed in the entire assessment order that there was any enquiry made by him. The only fact relating to the return having been revised had been discussed by the Assessing Officer in the order and even in the penalty order passed u/s 271(1)(c) the Assessing Officer had not stated that any enquiry being made by him during the penalty proceedings or after the completion of the assessment. Therefore, it cannot be said that the surrender made by the assessee was not voluntarily. It was further stated that the direction given by the learned CIT (A) were post surrender made by the assessee and when the assessee had already surrendered the gifts qua want of satisfaction, during the course of assessment proceedings itself, and the amount of gift received was not the subject matter of dispute, there remains no purpose of making any enquiry, post surrender because the enquiry would have been purposeful if the same had been conducted during the course of assessment and before the surrender made by the assessee. It was stated that there is no evidence on record of any nature whatsoever that there was any material with the Assessing Officer that may lead to somewhere nearer to the Assessing Officer's finding that the subsequent return filed by the assessee was not voluntary. It was submitted that the Assessing Officer accepting the revised return filed on 13/03/2003 issued notice u/s 143(2)/142(1) dated 17/03/2003 and the assessment had been completed on the income as shown in the revised return and there was nothing in the assessment order to suggest that the revised return was not voluntary. It was contended that the revised return filed by the assessee had not been disbelieved and since there was not much difference between the income as declared by the assessee in the revised return and as assessed by the Assessing Officer, the question of levy of penalty u/s 271(1))(c) does not arise. The reliance was placed on the following case laws:
1.            ACIT vs. Vishan Narayan Khanna 171 Taxman 136
2.            CIT vs. Rajiv Garg [2008] 175 Taxman 184 (P&H)
3.            Smt. Brij Bala Chaudhary vs ITO [2003] 87 ITD 173 (Luck)
4.            Santosh Narain Kapoor vs. Dy. CIT [2008] 25 SOT 26 (Luck)
4.            Qudai International vs. Income Tax Officer 2009 (13) MTC 622 (Trib)
5.            Dy. CIT vs. Tarun Agarwal 2009 (13) MTC 831

6.            In his rival submission the learned D. R. strongly supported the orders of the authorities below and further submitted that the surrender made by the assessee was not suo motu rather it was made when the assessee was cornered. As such it cannot be said that the assessee did not conceal the income, therefore, the penalty u/s 271(1)(c) of the Act was rightly levied by the Assessing Officer and confirmed by the learned CIT (A).
7.            We have considered the rival submissions and carefully gone through the material available on the record. In the present acase it is noticed that the assessee filed the return of income on 05/10/2001 declaring an income of `23,08,457/- which was processed u/s 143(1) on 23/11/2002. Thereafter, the case was selected for scrutiny. In the meantime the assessee revised the return of income on 13/03/2003 u/s 139(5) of the Act before completion of the assessment and it is not the case of the Department that the revised return filed by the assessee was beyond time. In the said revised return the assessee surrendered the amount of `10,00,000/- which was earlier shown as gifts received by the assessee. While surrendering the amount of `10,00,000/- in the revised return, the assessee mentioned as under:
"That while filing my return, the above mentioned documents had given me the impression that as per law I will prove the identity of the donor, genuineness of the transactions and capacity of the donor. However, I have been advised by my legal advisor that the department due to one reason or the other may not accept the said gift and there may be prolonged litigation on this point.
That since I am not keeping good health in these days, I do not want to fall in unnecessary litigation and to attain peace of mind, I have voluntarily suo motu and in good faith offered the said amount to tax."
7.1     From the above it would be clear that the assessee surrendered the amount of `10,00,000/- to avoid the unnecessary litigation and to attain peace of mind.   Before the said surrender nothing was brought on record that the addition of said amount was to be made.   Even at the time of framing the assessment u/s 143(3) of the Act vide order dated 28/03/2003, the Assessing Officer while computing the income of the assessee added `10,00,000/- by mentioning "income from other sources – credit/gift surrendered as per revised return `10,00,000/-". From the above noting of the Assessing Officer, it is crystal clear that the Assessing Officer admitted that the assessee surrendered the amount in the revised return, so it cannot be said that the said addition was made by the Assessing Officer by detecting any concealment of income by the assessee or on account of furnishing of inaccurate particulars of income, rather the addition was made inspite of the fact that the assessee had already suo motu surrendered the amount of `10,00,000/- in her revised return. The said return was filed by the assessee suo motu voluntarily within time allowable u/s 139(5) of the Act, so it cannot be said that the assessee concealed the income or furnished inaccurate particulars of income which is the requirement of levying the penalty u/s 271(1)(c) of the Act. In the instant case, the assessee although furnished all the documents relating to the gift in the shape of gift deeds along with the affidavit of the donors, copy of their PAN cards, acknowledgement of returns filed by the donors and the copies of balance sheet proving the genuineness of the gift but since the assessee was not keeping good health and did not want any confrontation and unnecessary litigation with the department, so to attain peace of mind, the return of income was revised surrendering the amount of `10,00,000/- which was earlier shown as gifts. The assessee also offered tax on the said amount of surrender therefore, it cannot be said that the assessee either concealed the income or furnished inaccurate particulars of income. As such, the penalty u/s 271(1)(c) was not lleviable to the facts of the present case.
7.2         In the case of Qudai International vs. Income Tax Officer 2009 (13) MTC 622 (Trib), the ITAT Lucknow Bench 'A' held that "mere raising of query by the Assessing Officer did not amount to detection of concealment. It cannot therefore, be said that the revised return was filed after detection of concealment and was not voluntary. The term "detection" itself implies the Assessing Officer had reached a conclusion but the query raised by the Assessing Officer was only first step in detection of concealment. If the assessee voluntarily revised the return, it could not be said that it does not fulfill requirements of section 139(5) of the Act." The facts of the present case are also similar to the facts of the aforesaid referred to case.
7.3         Similarly, in the case of Dy. CIT vs. Tarun Agarwal 2009 (13) MTC 831, the ITAT Lucknow Bench 'A' held that "the assessee had surrendered the amount before any specific detection of undisclosed income or even before the issue of notice. Even though a general enquiry was going on and notices had been issued to some of his relatives and the amount might have been surrendered because of compulsion of circumstances, it was not sufficient to penalise the assessee as the factum of detection was not there." In the present case also, nothing is brought on record that there was any detection at the level of the Assessing Officer to suggest that the assessee concealed the income amounting to `10,00,000/- which was offered for taxation suo motu in the revised return.

7.4 On a similar case the penalty u/s 271(1)(c) was deleted by the ITAT Lucknow Bench 'A' in the case of Santosh Narain Kapoor vs. Dy. CIT [2008] 25 SOT 26  (Luck) by holding as under (head note):
  "Whether since in instant case, there was no investigation of assessee by investigation wing of department and also there was no information with Assessing Officer that gift/credits were fake or bogus on dates when assessee had surrendered amounts voluntarily and there was also no material on record to establish that assessee had furnished inaccurate particulars of his income in original return, it could be said that Assessing Officer had not discharged his burden of proving concealment - Held, yes -Whether therefore, penalty levied by Assessing Officer was not justified and was liable to be deleted - Held, yes."
7.5     The facts of the present case are similar to the facts involved in the aforesaid referred to case decided by the ITAT, Lcknow Bench. We, therefore, by taking into consideration the view taken by the various coordinate Benches of the ITAT in the aforesaid referred to cases, are of the view that no penalty u/s 271(1)(c) of the Act is leviable in the facts of the present case.
8.       Now we will deal with the appeal in I.T.A. No.309/Luc/10.
 8.1      The only grievance of the assessee in this appeal relates to the confirmation of penalty of `1,77,663/- levied by the Assessing Officer u/s 271(1)(c) of the Act.
8.2 The facts related to this issue, in brief, are that the assessee filed his return of income on 29/10/2007 declaring an income of `15,96,205/-. The case was selected for scrutiny. During the course of assessment proceedings, the assessee has furnished a copy of her bank account with Standard Chartered Bank. The Assessing Officer noticed that it had a credit entry of `5,00,000/- on May 4, 2000 with a remark "gift". On enquiry, the assessee vide his letter 31/12/2002 submitted as under:
"Gift of `5,00,000/- was received from our family friend Mr. Mahadev Bansal of Delhi vide Demand Draft dated 01/05/2000 – copy of gift deed along with gift confirmation, PAN Card photocopy, ration card photocopy, B/S, Income Tax computation, acknowledgement of filing of return of income, income tax order u/s 143(1), Wealth Tax computation, bank statement copy through which draft got prepared (is) enclosed for your honour's reference."
8.3       Thereafter the Assessing Officer, vide his letter dated 28/01/2003 had written to the donor Shri Madadev Prasad Bansal to submit certain details with respect to amount given by him as gift. He also wrote a letter dated 27/01/2007 to the Branch Manager, State Bank of Patiala, Dariyaganj, New Delhi that was the same bank branch from which `5,00,000/- gift had been purportedly given to the assessee. Vide letter dated 27/01/2003, the Branch Manager of the said bank, informed the Assessing Officer as under:
"Please refer to your letter. In this connection, we advise that no such SB A/c is maintained in our branch in the name of Shri Mahadev Prasad Bansal S/o Late Shri Phool Chand Bansal, r/o A-98/3, Dilshad Colony, Delhi (A/c 01190003669). However, the a/c is in the name of Shri Harish Grover…."
8.4 In the meanwhile the assessee revised the return of income on 13/03/2003 declaring a total income of `20,96,205/- wherein `5,00,000/- (credit in Standard Chartered Bank) was offered for tax. Thereafter the Assessing Officer issued notice u/s 142(1) dated 17/03/2003 requiring the assessee to furnish reasons for revising the return. The assessee submitted as under:
"(1) That I have revised my return for the A.Y.2001-02 by taking the bank deposit of `5,00,000/- with Standard Chartered Bank, Kanpur a/c No.622-1-001617-5.
(1)          That I have deposited the tax amount of `2,19,938/-along with interest as applicable under the law on 13.3.2003.
(2)          That this deposit I have received vide draft No.150185 drawn on State Bank of Patiala branch Daryaganj, New Delhi-110002 dated 1.5.2000 for `5,00,000/- from my family friend Mr. Vinod Garg, s/o late Shri R.S. Garg R/o        B-1155, Shastri Nagar, Delhi-110 052 as a gift towards his natural love and affection towards me and the gift was without any consideration.
(4) That the donor has sent me along with the draft of gift the following documents: same enclosed
(a)         Gift deed
(b)         Affidavit towards making the Gift.
(c)         Income Tax Return filing proof in shape of acknowledgment of Return filing.
(d)         Balance Sheet as on 31.3.99
(e)         PAN Card photocopy
(f)           Ration Card photocopy
(g)     Wealth Tax Return filing proof
(h)     Income Tax order u/s 143(1)
(i)      Bank statement copy
(3) That by mistake Mr. Mahavir Prasad Bansal, s/o late Phool Chand, R/o A-98/3, Dilshad Colony-110 095, the brother in law of Mr. Vinod Garg has sent me the documents as mentioned in next column along with the draft under wrong impression of treating that the draft has been prepared by him when the typing mistake has taken place in the documents got prepared by his accountant. Mr. Mahadev Prasad Bansal has also made a gift of similar amount to one of the common friends.
(6) That Mr. Bansal has sent me along with the draft of gift the following documents under the wrong impression:
(a)         Gift deed
(b)         Affidavit towards making the gift.
(c)         Income Tax return  filing  proof in  shape  of acknowledgment of return filing.
(d)         Balance sheet as on 31.3.99.
(e)         PAN card photocopy
(f)           Ration Card photocopy
(g)     Wealth Tax return filing proof.
(h)     Income Tax order u/s 143(3)
(i)      Bank statement copy
(7)          That while filing my return the above mentioned documents has, given me the impression that as per law I will prove the identity of the donor, genuineness of the transactions and capacity of the donor. However now I have been advised by my legal advisor that the department due to one reason or the other may not accept the said gift and there may be prolonged litigation on this point.
(8)          That since I am not keeping good health in these day, I do not want to fall in unnecessary litigation and to attain peace of mind, I have voluntarily, suo motu and in good faith offered the said amount for tax.
(9)          That since I have revised my return by offering the above mentioned deposit for tax, it is humbly requested that the assessment of the humble assessee may kindly be finalized at the earliest and no adverse action my be taken."
8.5     The Assessing Officer framed the assessment on 28/03/2003 and  in the computation of income added a sum of `5,00,000/- with the remark gift surrendered as revised return.   Thereafter, the Assessing Officer initiated the penalty proceedings u/s 271(1)(c) of the Act and levied the impugned penalty.
9. The assessee carried the matter to learned CIT(A) who confirmed the action of the Assessing Officer. Being aggrieved, the assessee is in appeal.
10. The facts of the present case are similar to the facts involved in the case of Smt. Aparna Singh in I.T.A. No.310/Luc/10. The said case we have already adjudicated in the former part of this order and even the rival submissions were similar as were in the aforesaid referred to case. Therefore, our findings given in former part of this order while deciding the appeal of Smt. Aparna Singh in I.T.A. No.310/Luc/10 for the assessment year 2001-2002 shall apply mutatis mutandis. In that view of the matter, the penalty levied by the Assessing Officer and confirmed by the CIT (A) is deleted.
11.     In the result, the appeal is allowed.
(The order was pronounced in the open court on 07/01/2011)
Sd/.                                                                       Sd/.
( H. L. KARWA )                                                     (N. K. SAINI)
Vice President                                               Accountant Member

Dated: 07/01/2011

ITR(Trib) Vol 7 Part 4 dated 24-01-2011

ITR'S TRIBUNAL TAX REPORTS (ITR (Trib)) HIGHLIGHTS
ISSUE DATED 24-1-2011
Volume 7 Part 4


APPELLATE TRIBUNAL ORDERS
>>> Assessee failing to prove source of investment in flat addition of amount u/s. 69 proper : Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) p. 331

>>> Initiation and dropping of proceedings u/s. 154 cannot be equated with passing of assessment order, reassessment valid : Raj Woolen Industries v. Asst. CIT (Delhi) p. 339

>>> Where sale of depreciable assets, amount adjusted against WDV of concerned block of asset : Raj Woolen Industries v. Asst. CIT (Delhi) p. 339

>>> Where export proceeds retained outside India in accordance with RBI guidelines and utilised on computer software development on-site at client's place outside India and on expenses of branch not to be excluded from export turnover : Zylog Systems Ltd. v. ITO (Chennai) [SB] p. 348

>>> Expenditure incurred during period intervening between grant of approval to set up project office in India and commencement of actual work, deduction allowable u/s. 37 : Dy. DIT v. Stork Engineers and Contractors B.V. (Mumbai) p. 365

>>> AO not justified in attributing non-filing of return for earlier year as reason for not allowing the opening work-in-progress by characterising it as "prior period expenditure" : Dy. DIT v. Stork Engineers and Contractors B.V. (Mumbai) p. 365

>>> ITO (HQ) has no jurisdiction to issue notice u/s. 142(1), assessment u/s. 144 in absence of statutory notice u/s. 143(2) null and void : Pravin Balubhai Zala v. ITO (Mumbai) p. 375

>>> Where termination of trade mark licence agreement not affecting profits of assessee, consideration received on transfer of marketing network of pharmaceutical products to company revenue receipt : Dy. CIT v. Bayer (India) Ltd. (Mumbai) p. 381

>>> Provision for leave encashment of employees for entire period on account of statutory provisions, incremental liability pertaining to AY alone allowable : Dy. CIT v. Bayer (India) Ltd. (Mumbai) p. 381

>>> Amount received on export of VSF outside India eligible for deduction u/s. 80HHC(3)(a) : Grasim Industries Ltd. v. Asst. CIT (Mumbai) p. 407


NEWS-BRIEFS

>>> Income-tax Department to process more than 40 lakh cases to avoid refund chaos

The Income-tax Department will process more than 40 lakh refund cases before April this year. The Department has streamlined the process as the statutory time limit to process the return and issue refund in the financial year 2009-10 is March 31 and almost 49 lakh such cases worth crores of rupees are pending with the Department. However, a number of such refunds have been processed already.

"The Department is hopeful of dispatching all these returns by March this year. Cases where the addresses are recorded incorrect, Permanent Account Number (PAN) is wrong and incorrect particulars of bank accounts result in backlogs", a senior Income-tax Officer said.

Many refunds will be sent back to the taxpayers through the Refund Banker Scheme, which is operational in a number of cities with the help of State Bank of India (SBI), they said.

An Income-tax Officer said the Finance Ministry has asked the Central Board of Direct Taxes (CBDT) to expedite the process and the Board has subsequently instructed the Department to process the refunds on a "prompt" basis. [Source : www.economictimes.com dated January 13, 2011]


>>> Prospects look good to raise the exemption limit on savings

To give some relief to common man battling rising prices, the Finance Minister is expected to raise the exemption limit on annual savings of an individual in the upcoming Budget. The savings exemptions may be raised in the Union Budget 2011-12 from the present Rs. 1 lakh. In 2010-11, the Finance Ministry allowed an additional exemption of Rs. 20,000 for investment in long-term infrastructure bonds.

The Minister is expected to raise the Rs. 1 lakh exemption limit by another Rs. 20,000 in the Union Budget in February, a Cabinet Minister told. Besides pushing up the savings rate, this would align the current income-tax regime towards the proposed Direct Taxes Code (DTC).

"This year is going to be an year of consolidation towards DTC", a top official in the Finance Ministry had said recently. In the DTC, the Government has proposed tax exemption on annual savings of up to Rs. 1.5 lakh. The tax exemptions for savings is received under section 80C of the Income-tax Act while the special window of Rs. 20,000 investment in infrastructure bonds is available under section 80CCF. The tax exemption for savings limit of Rs. 1 lakh when increased, will give an additional cushion to the common man who is grappling with price rise already.

"The deduction under section 80CC of Rs. 1 lakh was prescribed long back keeping in view the fact that there are very limited exemptions to deductions available to a common taxpayer. It makes a strong case to increase the level under section 80C to provide some tax relief and also increase potential for long term retiral savings", said a partner from a tax consultancy firm.

The savings of Indian households was Rs. 7,34,653 crore in 2007-08, of which over 55%, or Rs. 4,06,630 crore, is in bank deposits, according to the latest RBI figures. Bank deposits as defined by RBI, includes co-operative and non-credit societies. There has been a consistent shift in household savings away from physical assets towards financial assets. [Source : www.financialexpress.com dated January 14, 2011]

>>> Income-tax Department searches triggering alarm over food prices

The Income-tax Department surveyed business premises of big onion and vegetable traders in U. P., Maharashtra and few other States to detect hoarding and illegal profiteering.

IT sources said the officials of the Income-tax Department began an early morning operation of checking and obtaining the account books and ledgers of large wholesale onion traders based in Delhi and NCR. Meanwhile, traders in Maharashtra's Nashik and adjoining onion-growing areas went on two-day strike against income-tax raids and disrupted supply to traders from other States who are being forced to sell the vegetable at "below the cost price".

The Finance Minister had earlier said income-tax raids in the premises of different traders have also helped in reducing onion prices. There has been a "dip in onion prices in some States after income-tax search", he had said. Food inflation has crossed over 18 per cent. for the week ended December 25 due to high rates of onion and other items. Due to crop damage in key growing States, the country's total onion production is expected to decline by 12.5 per cent. to 10.5 million tonnes this year against 12 million tonnes in 2009-10, according to research body National Horticultural Research and Development Foundation (NHRDF). [Source : www.economictimes.com dated January 10, 2011]



ITR : Volume 330 : Part 4 Issue dated 24-01-2011

INCOME TAX REPORTS (ITR) HIGHLIGHTS

ISSUE DATED 24-1-2011
Volume 330 Part 4



SUPREME COURT JUDGMENTS


>>> MAT : Interest can be charged on tax calculated on book profits for failure to pay advance tax : Joint CIT v. Rolta India Ltd. p. 470

HIGH COURT JUDGMENTS


>>> Brought forward unabsorbed loss and deficiencies of earlier years to be adjusted first before granting special deduction u/ss 80-I and 80HH : Modi Nagar Paper Mills Ltd. v. Deputy CIT (All) p. 405


>>> Requirement of filing audit report along with return only wef 1-7-1995 : Failure for earlier years : Penalty cannot be imposed : S. V. Pathak and Co. v. N. C. Tewari, CIT (Bom) p. 410


>>> Additional Director competent to issue warrant of authorisation : Sunil Dua v. CIT (Delhi) p. 413


>>> Inclusion of jewellery proper where genuineness of Will not proved : Sunil Dua v. CIT (Delhi) p. 413


>>> Deposits not huge amounts : Explanation of assessee to be accepted : Sunil Dua v. CIT (Delhi) p. 413


>>> Concurrent finding by authorities that amount disclosed in audit reports, balance-sheets and regular returns of income : Finding of fact : CIT v. Modern Engineering Works (Delhi) p. 416


>>> Payee showing amount in its return and paying tax : Reassessment proceedings quashed : CIT v. Rainee Singh (Delhi) p. 417


>>> Settlement of cases : Notice u/s 142(1) based on material discovered during search operation not valid : Smt. Neeru Agarwal v. UOI (All) p. 422


>>> Mere change in sub-heading in books of account : Not entitled to make additions u/s 41 : CIT v. Auto Kashyap India P. Ltd. (Delhi) p. 435


>>> NBFC : Interest on intercorporate deposit not received for more than six months : Interest does not accrue : CIT v Vasisth Chay Vyapar Ltd. (Delhi) p. 440


>>> Receipts from freight and insurance packing charges, sales tax set off and gross service income : Ninety per cent. to be excluded from profits of business : CIT v. Dresser Rand India P. Ltd. (Bom) p. 453


>>> Interest on deposits not allowable : CIT v. Dresser Rand India P. Ltd. (Bom) p. 453


>>> Purchase of immovable property by Central Government : Valuation whether as on date of agreement with original allottee or with assignee or as on date of determination : Matter remanded : R. N. Soin and Sons P. Ltd. v. Appropriate Authority (Delhi) p. 455


>>> Interest on loans obtained by assessee to settle liability of its sister concern to retain business premises of assessee allowable : CIT v. Neelkanth Synthetics and Chemicals P. Ltd. (Bom) p. 463


>>> Tribunal finding investments not belonging to assessee but to family members as well : Finding of fact : CIT v. Chandulal Chhugani (Chhattisgarh) p. 467


>>> Assessee trust having imparting education as one of its objects entitled to registration u/s 12A : Director of I. T. v. Garden City Educational Trust (Karn) p. 480

STATUTES AND NOTIFICATIONS


>>> Rules :

Special Economic Zones (Sixth Amendment) Rules, 2010 p. 5


>>> C. B. D. T. Circulars :

Circular No. 5 of 2010 : Corrigendum p. 5

Circular No. 8 of 2010, dated 13th December, 2010.-Income-tax deduction from salaries during the financial year 2010-11 under section 192 of the Income-tax Act, 1961 p. 22


>>> Notifications :

Income-tax Act, 1961 : Notifications under section 35(1)(ii)/(iii) : Scientific research associations p. 19

Income-tax Act, 1961 : Notification under section 35AC(1) Expln., clause (b) : Eligible projects or schemes p. 75

Income-tax Act, 1961 : Notification under section 80-IB(10)(a), (b) : Scheme for slum redevelopment p. 19

Income-tax Act, 1961 : Notification under section 90 : Avoidance of double taxation and mutual administrative assistance in tax matters among Governments of SAARC Member States p. 6

NEWS-BRIEFS


>>> I. T. Dept. to process more than 40 lakh cases to avoid refund chaos

The Income-tax Department will process more than 40 lakh refund cases before April this year.

The Department has streamlined the process as the statutory time limit to process the return and issue refund in the financial year 2009-10 is March 31 and almost 49 lakh such cases worth crores of rupees are pending with the Department.

However, a number of such refunds have been processed already.

"The Department is hopeful of dispatching all these returns by March this year. Cases where the addresses are recorded incorrect, Permanent Account Number (PAN) is wrong and incorrect particulars of bank accounts result in backlogs," a senior I-T officer said.

Many refunds will be sent back to the taxpayers through the Refund Banker Scheme, which is operational in a number of cities with the help of State Bank of India (SBI), they said.

An I-T officer said the Finance Ministry has asked the Central Board of Direct Taxes (CBDT) to expedite the process and the Board has subsequently instructed the Department to process the refunds on a "prompt" basis. [Source : www.economictimes.com dated January 13, 2011]


>>> Prospects look good to raise the exemption limit on savings

To give some relief to common man battling rising prices, the Finance Minister is expected to raise the exemption limit on annual savings of an individual in the upcoming Budget.

The savings exemptions may be raised in the Union Budget 2011-12 from the present Rs. 1 lakh. In 2010-11, the Finance Ministry allowed an additional exemption of Rs. 20,000 for investment in long-term infrastructure bonds.

The Minister is expected to raise the Rs. 1 lakh exemption limit by another Rs. 20,000 in the Union Budget in February, a Cabinet Minister told. Besides pushing up the savings rate, this would align the current income-tax regime towards the proposed Direct Taxes Code (DTC).

"This year is going to be an year of consolidation towards DTC," a top official in the Finance Ministry had said recently. In the DTC, the Government has proposed tax exemption on annual savings of up to Rs. 1.5 lakh.

The tax exemptions for savings is received under section 80C of the Income-tax Act while the special window of Rs. 20,000 investment in infrastructure bonds is available under section 80CCF. The tax exemption for savings limit of Rs. 1 lakh when increased, will give an additional cushion to the common man who is grappling with price rise already.

"The deduction under section 80CC of Rs. 1 lakh was prescribed long back keeping in view the fact that there are very limited exemptions to deductions available to a common taxpayer. It makes a strong case to increase the level under section 80C to provide some tax relief and also increase potential for long term retiral savings," said a partner from a tax consultancy firm.
The savings of Indian households was Rs. 7,34,653 crore in 2007-08, of which over 55%, or Rs. 4,06,630 crore, is in bank deposits, according to the latest RBI figures. Bank deposits as defined by RBI, includes co-operative and non-credit societies. There has been a consistent shift in household savings away from physical assets towards financial assets. [Source : www.financialexpress.com dated January 14, 2011]


>>> Pre-budget fears over banning fake NGOs

The demand for a ban on fake non-governmental organisations and a tax regime to identify them in the forthcoming Budget have come from none other than the NGOs themselves.

In a pre-budget interactions with Finance Minister, NGOs pleaded for reining in fake organisations, ostensibly floated for the welfare of the vulnerable sections of society.

They said any kind of tax concessions given to NGOs should be conditional on the assessment of their work.

However, for the genuine NGOs they wanted modifications in the proposed Direct Taxes Code, which is scheduled to replace the Income-tax Act from April 1, 2012.

A former SEBI Chairman who represented Jaipur Foot, said organisations asked for restructuring of DTC proposals.

Currently, NGOs registered under certain sections of the Income-tax Act get various kinds of tax concessions.

However, the Direct Taxes Code bill proposes that charitable and not-for-profit organisations (NGOs) will be allowed a basic exemption of Rs. one lakh and any income over it will be liable to 15 per cent. tax.

The Bill also proposes to tax anonymous donations for NGOs at the rate of 30 per cent. as against the rate of 15 per cent. applicable to other donations.

The 30 per cent. tax will fall on the donations above Rs. one lakh or five per cent. of total donations received by the NGO, whichever is higher.

NGOs also called for green budget that will address the issue like climate change, terming nuclear energy as false solution and coal as dirty option.

"If India as a country is serious about giving energy to all, then we need to think beyond false solutions like nuclear energy and dirty options like coal and invest in decentralized renewable energy," NGO Greenpeace said. [Source : www.financialexpress.com dated January 16, 2011]


>>> I-T Dept. searches triggering alarm over food prices

The Income-tax Department surveyed business premises of big onion and vegetable traders in U. P., Maharashtra and few other States to detect hoarding and illegal profiteering.

IT sources said the officials of the Income-tax Department began an early morning operation of checking and obtaining the account books and ledgers of large wholesale onion traders based in Delhi and NCR.

Meanwhile, traders in Maharashtra's Nashik and adjoining onion-growing areas went on two-day strike against I-T raids and disrupted supply to traders from other States who are being forced to sell the vegetable at "below the cost price".

The Finance Minister had earlier said I-T raids in the premises of different traders have also helped in reducing onion prices.

There has been a "dip in onion prices in some States after I-T search," he had said. Food inflation has crossed over 18 per cent. for the week ended December 25 due to high rates of onion and other items.

Due to crop damage in key growing States, the country's total onion production is expected to decline by 12.5 per cent. to 10.5 million tonnes this year against 12 million tonnes in 2009-10, according to research body National Horticultural Research and Development Foundation (NHRDF). [Source : www.economictimes.com dated January 10, 2011]


>>> Trade Union calls for changes to enhance tax exemption

Tax Amid skyrocketing prices, Central trade unions are all set to press the Finance Ministry for raising income-tax exemption limit to Rs. 3 lakh from existing Rs. 1.6 lakh in the 2011-12 Budget, in their meeting scheduled for Wednesday.

Besides this, the unions would ask to universalise and strengthen public distribution system and rationalise tax, duty and cess on petroleum products, with a view to reduce burden on people.

"We have unanimously decided that all nine central trade unions would ask the Finance Minister to enhance income-tax exemption limit to Rs. 3 lakh," All India Trade Union Congress Secretary said.

He said, "The common man is reeling under the price rise situation and would ask the Finance Minister for universalising of PDS and rationalisation of taxes on petroleum products including petrol, diesel and cooking gas."

The central trade unions, he said, would also ask the Ministry to enlarge the ambit of Employees Provident Fund (EPF) scheme by reducing threshold limit of 20 employees to 10.

At present, only those private establishments which have 20 or more employees come under this EPF scheme. Reducing the threshold limit to 10 would help covering 45-50 lakh more workers under this mandatory social security scheme, he added.

The Employees' Provident Fund Organisation's apex body Central Board of Trustees have already approved the reduction in threshold limit to 10 long back. But this move is awaiting Finance Ministry's approval.

The union members would also press for making EPFO's Employee Pension scheme more sustainable, by fixing the minimum pension at Rs. 1,000 per month. Besides this, they will also ask for restoring benefits like pension withdrawal by workers under EPS.

They would express their reservations against allowing foreign direct investment in multi-brand retail and further disinvestment of public companies. They would also ask for not allowing industrial house in banking business. [Source : www.financialexpress.com dated January 11, 2011]

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