AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (4) TMI 841
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.... accumulated profits in the case of the payer company either at the beginning of the year or at the end of the year, That the addition made u/s 2(22)(e) of the Act is untenable per-se. 3) That the learned CIT (Appeals) has erred in upholding the action of she Assessing Officer in making a disallow ance of the claim of set off of brought forward capital loss amounting to Rs. 3,61,646/- on the ground that the assesses has not filed the return of income for assessment year 2009-10, That the acknowledgment of return filed by the assessee for assessment year 2O09-10 was furnished both before the A.O. as well as the CIT(Appeals) and that the CIT (Appeals) has erred in rejecting the explanation of the assessee only on suspicion. 4) That the learned CIT (Appeals) has erred in upholding the addition of Rs. 49,000/- made by the Assessing Officer under the head income from house property". 5) That the learned CIT (Appeals) has erred in sustaining an addition of Rs. 2,15,000/- out of a total addition of Rs. 4,60,000/- inade by the Assessing Officer u/s 69 of the Act. 6) That the learned CI T( Appeals) has erred in sustaining an addition of Rs. 1,38,000/- out....
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.... assessee which will be considered deemed to be let out. As per the provisions of Section 72 of Income Tax Act, 1961 "'The annual value of property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purposes of any business or profession carried on by him the profits of which are chargeable to income-tax, shall be chargeable to income tax under the head 'income from house property'." In view of the above discussion, following two properties are considered deemed to be let out: l. Shop No. 4, Kamla Nagar 2. Shop No. 5, Kamla Negar As per section 23(1), "For the purposes of section 22, the annual value of any property shall be deemed to be - the sum for which the properly might reasonably be expected to let from year to year". As regards to the valuation of Total Annual value in respect of the above mentioned properties, the Total Annual value is taken to be atleast as per the valuation of Municipal Corporation of Delhi available on website of MCD as per following detail: Detail of Property Annual Value by MCD Total Ann....
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....lso got this advance interest free. The assessee also vide letter dated 17.12.2012 submitted the list as called for in respect of firms/HUFs/Companies in which the assessee was involved. From the list submitted, it was seen that the assessee was a shareholder and director in M/s Alumni Management Co. Pvt. Ltd and M/s Mittal Construction & Real Estate Pvt. Ltd. Thus, it is seen that in the above 2 cases, loans/advance was given by the closely held company, to its director and this loan/advance was given interest free. The assessee vide notice u/s 142(1) dated 12.02.2013, was asked to show cause to why the provisions of Section 2(22)(e) should not be applied as regards to the loans received from the above two companies in which the assessee is shareholder and director. The assessee vide letter dated 04.03.2013 submitted his reply on the issue of provisions of section 2(22)(e) which is reproduced as under: "We are to submit that the provisions of section 2(22)(e) will be applicable to the Companies only & that too on the payments made by way of advance or loan to its shareholder etc. Further the assessee has only given loans & advances to the compan....
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....en taxed indirectly in the hands of the assessee through the provisions of clubbing of income. The assessee has taken the said loan which was paid directly through the savings account of children. We are hereby enclosing the Xerox copy of the passbook of the Saving 's Bank account of children. The reply of the assessee was considered and is not found tenable. The perusal of the Saving Bank Account of children of the assessee reveals that there is always deposit of cash in the Saving Account before issuance of the cheque. Some of the transactions revealing cash deposited and cheque issued are detailed hereunder: 1. Union Bank India, Ashok Vihar Branch, Account No. 396602010007547 in the name of Sidharth Mittal U/G Manoj Mittal S.No. DATE CASE DEPOSITED CHEQUE ISSUED 1 17.03.2019 49900 2 22.04.2009 50000 3 04.02.2010 55000 4 05.03.2010 60000 2. Union Bank of India, Ashok Vihar Branch, Account No. 396602010009290 in the name of Kushi Mittal U/G Manoj Mittal S.No. DATE CASE DEPOSITED CHEQUE ISSUED 1 17.03.2019 49900 2 21.04.2009 ....
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....ata is available on the same. In view of the above, the loss of Rs. 3,61,646/- set off by the assessee is disallowed under section 80 read with section 139(3) of I.T. Act, 1961 and added back to his income. Since the assessee has furnished inaccurate particulars or his income resulting escapement of Income, penalty proceedings u/s 27(1)(c) are to be initiated seperately. (C) The assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A), vide impugned appellate order dated 04.07.2016 confirmed the aforesaid additions of Rs. 49,000/- (under the head "Income from House property"); Rs. 18,42,000/- (on account of deemed dividend u/s 2(22)(e) of Income Tax Act); Rs. 50,000/- (on account of deemed dividend u/s 2(22)(e) of Income Tax Act); and Rs. 3,61,646/- (on account of disallowance of brought forward capital loss). However, the Ld. CIT(A) allowed partial relief in respect of the aforesaid additions made u/s 69 of Income Tax Act and Section 50C of Income Tax Act. The relevant portion of the order of Ld. CIT(A) is reproduced as under :- 9.3 Ground No. 3 relates to addition of Rs. 49,000/- the annual value of the property. During the course of assessment proceedings, Assessi....
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....rivate Limited, however, on 09.02.2010. Assessee became debtor of M/s Mittal Construction and Real Estate Company Private Limited. As a result, loan of Rs. 6,58,000/- was outstanding, the company had advanced a sum of Rs. 25,00,000/- to the Assessee which was finally repaid by Assessee on 30.03.2010. Similarly Appellant has raised a loan of Rs. 50,000/- from M/s Alumini Management Company Private Limited. Assessing Officer also observed that Assessee was a shareholder and director in both M/s Mittal Construction and Real Estate Company Private Limited and M/s Alumni Management Company Private Limited. Appellant has submitted that he has not received any loan from M/s Mittal Construction and Real Estate Company Private Limited and amount was received from the company in the regular course of business. Further, he has stated that the accumulated profits of M/s Mittal Construction and Real Estate Company Private Limited and M/s Alumini Management Company Private Limited. was Nil as on 01.04.09 and, therefore, there was no justification for making an addition u/s 2(22)(e)of the Act. 9.5 1 have considered the observations of the Assessing Officer and submissions of the Appellan....
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....cheques to him and, therefore, he observed that Assessee has routed his own money through the SB account from his children as loan from them. Accordingly, he made the disallowance of Rs. 4,60,000/- u/s 69. Assessee has stated that Assessing Officer has included the loans by Assessee from his minor children even during the earlier years and only the deposits which have been made in the bank account during the year are Rs. 99,900/- (Rs. 50,000/- + Rs. 49,900/-) and, therefore, there is no basis to made addition of Rs. 4,60,000/- during the year. Further, he has stated that since the Assessee is living in a joint hindu family his minor children are receiving gifts from relatives, friends etc. on various occasions and the deposits are the gifts received by his children during the year. 9.8 1 have considered the observations of the Assessing Officer and submissions of the Appellant. It is seen that Appellant has not submitted any evidence that his minor children had received gifts on various occasions either before Assessing Officer or before me. Therefore, claim of Appellant is not tenable. From the perusal of the bank account Of the Appellant, it is seen that there are ....
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....of this, disallowance made by Assessing Officer of Rs. 3,61,646/- is sustained. Accordingly, Ground No. 7 is dismissed. 9.10 Ground No. 8 relates to making an addition Rs. 34,00,000/- by invoking the provisions of Section 50C(1) without considering the provisions of Section 50C(2) of the Act. During the course of assessment proceedings, Assessing Officer observed that Assessee had sold residential property declaring a sale value of Rs. 70,00,000/- whereas the value as per circle rate was Rs. 1,04,00,000/-. Assessing Officer adopted the circle rate of Rs. 1,04,00,000/- as the full value of consideration for the sale of property as the valuation of property was not disputed at any stage either by the purchaser of the property or by the seller and, accordingly, made an addition of Rs. 34,00,000/- Assessing Officer has submitted the report of DVO and it is seen that valuation report has estimated the declared sale consideration at Rs. 71,83,000/-. Appellant in rejoinder to the remand report has submitted that as against declared sale consideration of Rs. 70 lakh, valuation report has estimated the value at Rs. 71,83,000/- and, therefore, submitted that the difference be ignore....
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....s. DCIT I.T.A No. 7545/MUM/2014 ITAT Mumbai 18. Copy of Judgement in the case of CIT Vs. Alom Extrusions Ltd. 319 ITR 306(SC) Supreme Court of India 19. Copy of Judgement in the case of Dharamhibhai Sonani Vs. ACIT I.T.A No. 1237/Ahd/2013 ITAT Ahmedabad 20. Copy of Judgement in the case of Jitendra R. Patel Vs. DCIT ITA no. 1932/Ahd/2013 ITAT Ahmedabad 21. Copy of judgement in the case of CIT Vs. Ansal land Mark Township P. Ltd. 377 ITR 635 (Del) Delhi High Court 22. Copy of judgement in the case of CIT Vs. Calcutta Export Company 404 ITR 654 (SC) Supreme Court of India (D.1) In addition, copy of order of Income Tax Appellate Tribunal, dated 09.08.2019, in the case of Chandra Prakash Jhunjhunwala vs. DCIT for A.Y. 2014-15 ITA No. 2351/Kol/2017 was also filed from the assessee's side. Further, a synopsis was also filed from the assessee side relevant portion of which is reproduced as under : MANOJ MITTAL A.Y. 2010-11 ITA No, 4596/Del/2016 Ground No. 1 SYNOPSIS 1. During the F.Y. 2009-10 the assessee had lent money to M/s Mittal Construction & Real Estate Pvt. Ltd. As per the books of M/s Mittal Construction & Real ....
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.... also argued before the ld CIT(A) that even otherwise the addition u/s 2(22)(e) made at Rs. 18,42,000/- is not justified because as on 09.02.2010. M/s Mittal Construction & Real Estate Pvt. Ltd. was not having any accumulated profit. The ld CIT (A) had held that (i) the assessee had not submitted any thing in support of his argument that the money of Rs. 25,00,000/- was given by M/s Mittal Construction Real Estate Pvt. Ltd. in regular course of it's business; and (ii) current year's profit are to be Included in "accumulated profits". 4. The authorities below had overlooked the fact that the figure or accumulated profits as on 09.02.2010 was NIL; (ii) the figure of accumulated profits as on 31.03.2010 was Rs. 5,40,487/-; and (iii) the assessee was holding just 50% shares in M/s. Mittal Construction & Real Estate Pvt. Ltd. 5. The assessee's submissions before this Hon'ble Bench are two fold; (a) the money of Rs. 25,00,000/- was given by M/s Mittal Construction & Real Estate Pvt. Ltd. to the assessee in regular course of its business and as soon as the purpose for which it was given, was defeated, the assessee had returned the entire money within....
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.... 10. Once the ld CIT (A) had recorded that as per the ITR Ack. for A.Y. 2009-10, the Ward [19(2) New Delhi) and the Return Receipt No. [1933002301] are mentioned on the ITR Ack., she should had directed the ld AO [ACIT, Circle 19(1) New Delhi] to find cut the ITR of the assessee for 2009-10 which was filed vide Receipt No. 1933002301 in the office of ITO Ward 19(2) New Delhi. It may be worth pointing out here that the assessee had paid Rs. 399/- by way of self assessment tax for A.Y. 2009-10 on 27.07.2009, which was clearly mentioned in the ITR Ack. for A.Y. 2009-10. 11. Under such circumstances, this Hon'ble Bench is requested to kindly allow the set off of Long Term Capital Loss of Rs. 3,61,464/- (as carried forward from immediately preceding year i.e. A.Y. 2009-10) against the LTCG arose for A.Y. 2010-11. Ground No. 4 12. The ld AO had show caused the assessee to explain as to why notional rent in respect of Shop No. 4 & 5 Kamla Nagar Delhi, be not added to its income under the head "House Property". 13. As a matter of fact the assessee was not the owner of these shops. Two separate lease deeds (each in respect of shop no. 4 and shop no....
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....esh loan taken from Khushi Mittal. As a matter of fact (a) there was opening balance of Rs. 55,158/- in the bank account of Khushi Mitral as on 01.04.2009; and (b) cash of Rs. 49,900/- [which represented the cash gifts received by the Khushi Mittal on her birthday on 16.04.2009 (5 days ago)] was found deposited on 21.04.2009 in the bank a/c of Khushi Mittal. 20. The ld CIT (A) had failed to appreciate that since the sources of funds in the hands of Siddarth Mittal (Rs. 65000/- Op. Bal. + Rs. 50,000/- (Gifts received on Birthday) and Khushi Mittal (Rs. 55,000/- Op. Bal. + Rs. 49,900/- Gift received on Birthday) were reasonably explained by the assessee, there was no justification for sustaining addition at Rs. 2,15,000/- (Rs. 1,15,000/- + Rs. 1,00,000/-) Ground No. 6 21. The ld CIT (A) had sustained addition on a/c of provision of Sec 50C at Rs. 1,83,000/- (being the difference of Rs. 71,83,000/- representing the fair market value estimated by DVO and Rs. 70,00,000/- representing the sale consideration). 22. The difference between the fair market value estimated by DVO at the Rs. 71,83,000/- and the actual sale consideration at Rs. 70,00,000/- is ....
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....upra). Ld. Senior Departmental Representative ("Ld. Sr.DR", for short) placed reliance on the impugned appellate order dated 04.07.2016 of the Ld. CIT(A). We have heard both sides patiently. We have perused materials on record carefully. We have considered the precedents referred to in the records or brought to our attention in the course of appellate proceedings in ITAT. We proceed to decide the various grounds of appeal as under. (E) First ground of appeal is in respect of addition of Rs. 18,42,000/- on account of deemed dividend u/s 2(22)(e) of Income Tax Act. Although it was contended on behalf of the assessee that this amount was received by the assessee in the course of regular course of business from M/s. Mittal Construction & Real Estate Pvt. Ltd. don 09.02.2010; the Authorised Representative of the assessee failed to bring any material to our notice to support the contention that transaction of Rs. 18,42,000/- was made in the regular course of business. The assessee has failed to substantiate the claim, that the transaction was made in the normal course of business, not only during the assessment proceedings before the Assessing Officer; but also during appellate procee....
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..... 1933002301 in the office of ITO, Ward 19(2), New Delhi; wherein claim for long term capital loss of Rs. 3,61,646/- to be carry forward has been made. Therefore, the basis on which the assessee's claim for brought forward capital loss had been rejected by the Assessing Officer is incorrect. Further, if the date of filing of ROI is not clearly visible in the stamp; it is not the fault of the assessee. The assessee does not bring its own acknowledgement stamp to be fixed on ROI; and the assessee does not himself fix the stamp. It is a stamp of Income Tax Department, and the stamp is fixed by officials of Income Tax Department. If the date of acknowledgement is not clearly visible in the ROI; it is the mistake of Revenue officials. Even when the date of receipt of ROI in Income Tax Department is not clearly visible in the acknowledgement; it is easy for Revenue officials to ascertain date of receipt from reference to records of Income Tax Department. We record our displeasure that no effort was made during appellate proceedings before Ld. CIT(A) to ascertain this date. We direct the Assessing Officer to allow the assessee's claim for long term capital loss amounting to Rs. 3,61,646/-....
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....inor children of the assessee, Master Sidharth Mittal and Miss Khushi Mittal. At the time of hearing before us, it was brought to our notice by the Ld. Authorised Representative of the assessee that the cash deposits in the bank accounts of the aforesaid two minor children of the assessee are of very insignificant and small amounts. He further submitted that the deposits were made out of gifts received by the two minor children on ceremonial occasions, such as birthdays. This contention of the Ld. A.R. was not disputed by the Ld. Departmental Representative at the time of hearing before us. However, she relied on the order of the Ld. CIT(A). We find that very small deposits of insignificant amounts were made in the bank accounts of the two minor children of the assessee. The Ld. CIT(A) has rejected the claim made by the assessee that these insignificant amounts were received by the minor children on ceremonial occasion such as birthdays. Having regard to the fact that the amounts are very small and insignificant in nature; and further, that it is customary and common practice in society to make gifts to the children on ceremonial occasions such as birthdays; we direct the Assessing....
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....ua the issue are that the assessee has filed his return of income declaring total income of Rs. NIL and claimed current year loss of Rs. 1,19,46,383/-. The assessee's case has been selected for scrutiny through CASS. Notice u/s 143(2) was issued on 22.04.2016 along with questionnaires and served upon the assessee. During the course of assessment proceedings, on perusal of the profit & loss account of the assessee for the year ended 31.03.2014 along with its computation of income for the A.Y. 2014-15, it was noticed by Assessing Officer that, the assessee had declared long term capital gain of Rs. 1,22,63,576/- against sale of property at Pretoria Street, Kolkata on 14.12.2013. During the course of assessment proceeding, the assessee was asked to furnish the details of property sold along with copy of sale deed and other relevant supporting documents regarding the indexation cost claimed while computing long term capital gain. The A.R. of the assessee through his letter dated 21.04.2016 submitted the copy of sale deed of the said property. Ongoing through, the details submitted by the assessee, it was noticed by the AO that the assessee had sold a property on 14.12.2013 to M/s S....
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....ut no report had been received from the DVO within the time sought for. Hence the provision of section 50C of the Act is being invoked in case of the assessee and the value as per stamp duty authority is being adopted as the full value of consideration received for the purpose of computation long term capital gain. Hence, in the case of the assessee, the market value of Rs. 3,27,01,950/- (as per stamp duty valuation) was concerned as the full value of consideration received as a result of the transfer / sale of property by the assessee. So, an amount of Rs. 12,01,950/- (difference of Rs. 3,27,01,950/- - Rs. 3,15,00,000/-) was added to the total income of the assessee by invoking section 50C of the Act. 6. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has confirmed the addition made by the Assessing Officer. Aggrieved by the order of the ld. CIT(A) the assessee is in appeal before us. 7. The ld. DR has primarily reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and the same is not being repeated for the sake of brevity and on the other hand the l....
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....ital gains (section 50C), business profits (section 43CA) and other sources (section 56) arising out of transactions in immovable property, the sale consideration or stamp duty value, whichever is higher is adopted. The difference is taxed as income both in the hands of the purchaser and the seller. It has been pointed out that this variation can occur in respect of similar properties in the same area because of a variety of factors, including shape of the plot or location. In order to minimize hardship in case of genuine transactions in the real estate sector, it is proposed to provide that no adjustments shall be made in a case where the variation between stamp duty value and the sale consideration is not more that five per cent of the sale consideration. These amendments will take effect from 1st April, 2019, and will, accordingly, apply in relation to the assessment year 2019-20 and the subsequent assessment years." We note that the fundamental purpose of introducing section 50C was to counter suppression of sale consideration on sale of immovable properties, and this section was introduced in the light of widespread belief that sale transactions of land and building a....
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....hands of the purchaser and the seller. It has been pointed out that this variation can occur in respect of similar properties in the same area because of a variety of factors, including shape of the plot or location. In order to minimize hardship in case of genuine transactions in the real estate sector, it was proposed by the Finance Act 2018, that no adjustments shall be made in a case where the variation between stamp duty value and the sale consideration is not more that five per cent of the sale consideration. These amendments will take effect from 1st April, 2019, and will, accordingly, apply in relation to the assessment year 2019-20 and subsequent years.While the Government has thus recognized the genuine and intended hardship in the cases in which there is minor variation between stamp duty value and the sale consideration. That is why,the Finance Act 2018 introduced welcome amendments to the statue to take the remedial measures. However, we note that this brings no relief to the assessee as the amendment is introduced only with prospective effect from 1st April 2019. There cannot be any dispute that this amendment in the scheme of Section 50C has been made to remove an in....
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....he assessee just because there is minor variation between stamp duty value and the sale consideration. We note that the statute such an amendment in law, in view of the well settled legal position to the effect that a curative amendment to avoid unintended consequences is to be treated as retrospective in nature even though it may not state so specifically, for that we rely on the judgment of the Hon`ble Supreme Court in the case of Alom Extrusions Ltd 185 Taxman 416 (SC) wherein it was held as follows: "8. On reading the above provisions, it becomes clear that the assessee(s)-employer(s) would be entitled to deduction only if the contribution stands credited on or before the due date given in the Provident Fund Act. However, the second proviso once again created further difficulties. In many of the companies, financial year ended on 31st March, which did not coincide with the accounting period of R.P.F.C. For example, in many cases, the time to make contribution to R.P.F.C. ended after due date for filing of returns. Therefore, the industry once again made representation to the Ministry of Finance and, taking cognizance of this difficulty, the Parliament inserted one more....
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....due dates under the Provident Fund Act, Municipal Corporation Act [octroi] and other Tax laws. Therefore, by way of first proviso, an incentive/relaxation was sought to be given in respect of tax, duty, cess or fee by explicitly stating that if such tax, duty, cess or fee is paid before the date of filing of the Return under the Income-tax Act [due date], the assessee(s) then would be entitled to deduction. However, this relaxation/incentive was restricted only to tax, duty, cess and fee. It did not apply to contributions to labour welfare funds. The reason appears to be that the employer(s) should not sit on the collected contributions and deprive the workmen of the rightful benefits under Social Welfare legislations by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned hereinabove, and which resulted in the enactment of Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this uniformity is brought about in the first proviso, then, in our view, the....
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....ded by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgment in Allied Motors (P.) Ltd.'s case (supra) is delivered by a Bench of three learned Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003, will operate retrospectively with effect from 1-4-1988 [when the first proviso stood inserted]. Lastly, we may point out the hardship and the invidious discrimination which would be caused to the assessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Take an example - in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March [end of accounting year] but before filing of the returns under the Incometax Act and the date of payment falls after the due date under the Employees' Provident Fund Act, they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of s....
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....uired to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole. Accordingly, the sales-tax collected by the assessee collected in the last quarter of the relevant previous year and paid after the end of the previous year but within the time allowed under the relevant salestax law could not be disallowed under section 43B, while computing the business income of the said previous year." 12. We note that the Coordinate Bench of ITAT Mumbai, in the case of M/s John Flower ( India) Pvt. Ltd, in ITA No.7545/Mum/2014, for A.Y. 2010-11, order dated 25.01.2017 held that if the difference between the valuation adopted by the Stamp Valuation Authority and declared by the assessee is less than 10%, the same should be ignored and no adjustments shall be made. Accordingly, we hold that the insertion of third proviso (noted above) to Section 50C of the Act is declaratory and curative in nature. That is, the third provisoto Section 50C of the Act relates to computation of value of property as explained by us above, hence it i....