TaxTMI 
TaxTMI 
2018 (12) TMI 406
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....llowing case laws in support of the proposition that assessee is entitled to make such claim in assessment proceedings pursuant to notice u/s.153A of the act: 1. Dorf Ketal Chemicals (I) P. Ltd. vs. DCIT (ITA No. 3736/M/2012)(Mum- Trib). 2. M/s. Narendra Vegetable Products Pvt. Ltd. vs. ACIT (ITA No.118/Nag/2013)(Mum-Trib). 3. DCIT vs. Ms. Eversmile Construction Co. Pvt. Ltd. (ITA No. 4238/M/2010)(Mum-Trib). 4. Mr. Faisal Abbas v. DCT (ITA Nos. 3485&3487/M/2010)(Mum-Trib). 5. Mr. A. Srinivas Rama Raju vs. DCIT (ITA No.975/Hyd/2015)(Hyd-Trib). 6. M/s. KNR Constructions Ltd. v. DCIT (ITA 946/Hyd/2015)(Hyd-Trib). 7. ACIT vs. Shri V. N. Devadoss (ITA Nos.1219/Mds/2012)(Chennai-Trib). 8. Alok Textile Industries Ltd. vs. DCIT (ITA No.118 of 2003)(Bom.HC) 5. Per Contra learned departmental representative opposed this view and placed reliance upon following case laws: 1. DCIT vs. Eversmile Construction Co. (P) Ltd. 33 taxmann.com 657 (ITATMum). 2. Jai Steel India Ltd. vs. ACIT 36 taxmann.com 523 (Raj); and 3. Charchit Agarwal vs. Asst.CIT 34 SOT 348 (ITAT-Del) 6. On careful consideratio....
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....n 139 of I.T. Act declaring total income of Rs. 22,30,259/-, The same was assessed as per the impugned assessment order now before us. For the year under consideration, the assessment was originally made under section 143(1) dated 7th February, 2004 (A.Y. 2003-04). At this juncture it is also worth to mention that in the case of the assessee for assessment year 2004- 05 originally the assessment was made under section 143(3) dated 22.12.2006. The return for the said year was filed declaring an income of Rs. 44,48,790/- and the same was assessed by the Assessing Officer. In the past the assessee was claiming a deduction under section 801B(3)(ii) of the Act. In the paper book the assessee has also computed year wise sales-tax incentive availed by the assessee. For assessment year 2003-04 the assessee has received an incentive In respect of oil refinery of Rs. 74,15,531/-. For assessment year 2004-05 the sales tax incentive in respect of oil refinery was at Rs. 33,96,658/- and in respect of wind power it was Rs. 23,00,000/- total Rs. 56,96f658/-. Likewise, in rest of the years, details in respect of the sales tax incentive was furnished. This is also not in dispute that in th....
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....of a search under section 153A is to be made on the total income of respective each six assessment years, immediately preceding the assessment year in which search is conducted. Sect/on 153A starts with a non-obstante clause and prescribes that notwithstanding anything contained in section 139, 148 etc., in the case of a person where a search is initiated then the Assessing Officer shall issue a notice requiring him to furnish the return of income in respect of six assessment years setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such returns were a return required to be furnished under section 139 of the Act. The Assessing Officer is also empowered either to assess or reassess the "total income" separately for six assessment years. This language of section 153A was duly analyzed by respected coordinate bench, Mumbai in the case of M/s Eversmife Construction Co. (Supra). We are also of the view that the intention of section 153A is clear that irrespective of the fact that original return could have filed by the assessee, but if a return is filed in compliance of a notice issued consequence upon....
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....tative difference between the two situations viz., the first in which the assessee files return in response to notice u/s 153A disclosing lower income than the one originally assessed u/s 143(3) and the second situation in which the income is disclosed at the increased level, that is, after considering the additions so made in the original assessment and then agitates during the assessment proceedings about the deducibility of the amount(s) which was/were not allowed earlier. Probably the second course is adopted so as to preempt any move on the part of the Revenue to impose concealment penalty, if the addition is sustained in the assessment u/s 153A. In our considered opinion when the Assessing Officer has to compute the total income of the assessee on the basis of return filed after considering the submissions made during the course of hearing before him. There cannot be any scope for arguing that the assessee has been rendered powerless to even lodge a claim in respect of which deduction was not allowed earlier. Here it is ' important to note that the total income is not reduced simply on the basis of making a claim. The Assessing Officer is fully empowered to consider the q....
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....cer is duty bound to assess the correct income and if a tax payer is unaware of law then the Assessing Officer should take initiative in guiding a tax payer. Therefore, the argument before us is that only a correct and just income is required to be assessed in the hands of the assessee by the Assessing Officer, Indeed, the true intent of the statute is that an assessee is not to be placed in a disadvantageous position because of a technical reason. The statute do not prescribe to take away a legal right of tax payer. Even the Law as pronounced by several Hon'ble Courts is that acquiescence to illegal tax for long time is not a ground for denying the relief to a tax payer if he is legally entitled for the same. The Hon'ble Courts have, therefore, guided the tax authorities that they are under obligation to act in accordance with law and tax is to be collected strictly as provided under the Act. Because of any misconception on the part of an assessee he cannot be over assessed. Rather the AOs are advised not to raise technical pleas if a citizen have a lawful right. A private litigant may adopt such recourse to protect his personal rights but State authorities are not expect ....
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....147 originates from the belief of the AO, on the basis of some tangible material, that income chargeable to tax has escaped assessment. After forming such belief, the AO is called upon to record reasons for the reopening of the assessment before issuing mandatory notice u/s 148. If the foundation of reassessment, being the reasons about the escapement of some income do not exist, then it is impermissible to go ahead with the assessment u/s 147. It is sine qua non that some escaped income must be brought to charge in order to make afresh assessment u/s 147. On the contrary, the search action itself mandates on the Assessing Officer to pass orders u/s. 153A computing total income for all the relevant six assessment years,respective of the fact whether some concealed income has surfaced as a result of search or not. It is thus apparent that the ambit of assessment u/s 147 cannot be imported into the scope of section 153 A," 6.6 Even the decision of Goetze India Ltd, 284 ITR 323 (SC) should not be applied in the context of the issue in hand, as reliance placed from the side of the Revenue, because it was made dear by the Hon'bie Supreme Court that the issue as settled in t....
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.... the in earlier years and claim lower income. This decision was rendered on a different set of facts and is not applicable on the facts of present case. 9. Accordingly, in the present case on the anvil of aforesaid case laws including that from the Apex Court, we hold that a legally admissible claim could be entertaining while framing the assessment u/s 153 A of IT Act. Hence the present claim of exempt dividend income has to be entertained by the revenue. 10. Now, we come to the merits of the claim of the dividend income received by the assessee from its Brazilian subsidiary being exempt in India in view of the beneficial provisions of DTAA, We find that Ld. CIT(A) has not at all adjudicated the merits of the claim. In this view of the matter we are of considered opinion that the matter needs to the remitted to the file of the Ld. CIT (A) to consider this claim of the assessee upon merits. Accordingly, the merits of the claim of the assessee regarding the dividend income being exempt is remitted to the file of Ld. CIT (A). The Ld. CIT (A), is directed to consider this issue after giving the assessee proper opportunity of being heard. 7. From the above, we find that the....
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....ellant of deduction of Rs. 5,00,00,000/- be allowed. 4. On the facts & circumstances of the case the Learned Commr. of Income Tax (A) has erred in concluding that the appellant is not entitled to contest the addition made u/s 14A of Rs. 32,08,5957-while computing the total income. The conclusion reached by Learned Commr. of Income Tax (A) is erroneous and contrary to the facts. 5. On the facts & circumstances of the case the appellant prays that the appellant has right to place the additional grounds on legal issues before Learned Commr. of Income Tax (A) to determine the correct and the real income for A.Y. 2006-07. 6. On the facts & circumstances of the case the appellant prays that the addition made u/s 14A amounting to Rs. 32,08,595/- be deleted. 7. On the facts & circumstances of the case the Learned Commr. of Income Tax (A) has erred in concluding that the appellant is not entitled to contest the addition made u/s 14A of Rs. 32,08,595/-while computing the book profit u/s 115JB. The conclusion reached by Learned Commr. of Income Tax (A) is erroneous and contrary to the facts. 8. On the facts & circumstances of the case the appellant....
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.... 5. On the facts & circumstances of the case the appellant prays that the appellant has right to place the additional grounds on legal issues before Learned Commr. of Income Tax (A) to determine the correct and the real income for A.Y. 2007-08. 6. On the facts & circumstances of the case the appellant prays that the addition made on account of employees contribution of provident fund amount to Rs. 44,922/- be deleted. 7. On the facts & circumstances of the case the Learned Commr. of Income Tax (A) has erred in concluding that the appellant is not entitled to contest the addition made u/s 14A of Rs. 48,66,304/-while computing the total income. The conclusion reached by Learned Commr. of Income Tax (A) is erroneous and contrary to the facts. 8. On the facts & circumstances of the case the appellant prays that the appellant has right to place the additional grounds on legal issues before Learned Commr. of Income Tax (A) to determine the correct and the real income for A.Y. 2007-08. 9. On the facts & circumstances of the case the appellant prays that the addition made u/s 14A amounting to Rs. 48,66,304/- be deleted. 10. On the facts &....
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.... the additional grounds on legal issues before Learned Commr. of Income Tax (A) to determine the correct and the real book profit u/s 115JB for A.Y. 2008-09. 6. On the facts & circumstances of the case the appellant prays that the addition made u/s 14A amounting to Rs. 28,54,347/- be deleted while computing the book profit u/s 115JB. 7. On the facts & circumstances of the case the appellant prays that Learned Commr. of Income Tax (A) has erred in rejecting the claim of the appellant that the sum of Rs. 42,271/- being the employees contribution paid before the due date of filing return u/s 139(1) be allowed as deduction. The Learned Commr. of Income Tax (A) has rejected the claim without giving any reasons in the appellate order. The appellant prays that the deduction of Rs. 42,271/- be allowed as deduction while computing the total income. 11. The grounds of appeal for assessment year 2009-10 reads as under: 1. On the facts & circumstances of the case the Learned Commr. of Income Tax (A) has erred in concluding that the appellant is not entitled to contest the addition made u/s 14A of Rs. 42,86,136/-. while computing the total income. The conclusion re....