TaxTMI 
TaxTMI 
2023 (7) TMI 24
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....ed the appeal in ITA No. 141/JPR/2023 on the following grounds:- "1. Whether on the facts and in the circumstances of the case in law, the ld. CIT(A) was justified in deleting the additions of Rs. 3,81,033/- made by the AO on account of interest on late payment of TCS." 4. The assessee has filed cross objection in CO No. 03/JPR/2023 against the revenue's appeal, on the following grounds:- "1. While repeating the submission of assessee, ld. CIT(A) NFAC was not justified in not giving his finding on legality of action initiated under section 147 of I.T. Act. 2. The deletion of addition of Rs. 3,81,033/- for interest for late payment of TCS was as per the law laid down in different judicial pronouncements and therefore cannot be treated as unlawful act of Ld. CIT(A), NFAC. 3. Ld. CIT(A), NFAC has erred in sustaining addition of Rs. 56,680/- on account of depreciation of vehicles, the deduction of which was allowed by the then ld. AO after making relevant query and on application of mind, meaning thereby it was a change of opinion, not permissible under income tax reassessment proceedings." 5. The fact as culled out from the records is that the assessee has filed the return o....
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....o deal the appeal of the Revenue and cross objection of the assessee by this consolidated order. A proposed to the grounds so raised by the Revenue, the ld. DR reiterated the contention raised in the scrutiny report submitted before the ld. PCIT while filing the appeal before this Tribunal and the contention of the Revenue raised in the scrutiny report is reproduced for the sake of convenience as under:- "The assessee is an AOP dealing in Indian Made Foreign Liquor and Beer with total turnover of more than Rs.213Cr. in retail as well as wholesale branches. Assessment in this case completed u/s 143(3) of IT Act on 19.11.2018 after considering the allowability interest of Rs.3,81,034/ on late payment of TCS amount and made addition of Rs.3,81,034/- on account of disallowance of Interest payment on late deposition of TCS and made addition of Rs.56,680/-on account of disallowance of part depreciation of Rs.56,680/- on vehicles. The Ld. CIT(A) vide order dated 09-02-2023 in ITBA/NFAC/S/250/2022- 23/1049589112(1) allowed appeal of the assessee on the 1st Issue holding that late deposition of T.D.S., T.C.S., Service Tax is not penal in nature relying upon various judgment quoted by th....
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....ereas for sustaining disallowance of Rs.56,680/-, the assessee is in CO. (1) Department's appeal for deletion of addition of Rs.3,81,033/-: "Whether on the facts and in the circumstances of the case in law, the Ld. CIT(A) was justified in deleting the addition of Rs.3,81,033/- made by the AO on account of interest on late payment of TCS" The appeal is not maintainable in view of Circular No. 17 of 2019 dated 8th August 2019 (P.B. page 3 & 4) as the tax effect is just Rs.1,17.740/-. Otherwise also the interest paid on late payment of TCS is compensatory in nature as held by Id. CIT(A) NFAC, after considering different judicial pronouncements referred to at page (8) of said order dated 09.02.2023. (2) CO of the assessee: (i) While repeating the submission of assessee, Id. CIT(A) NFAC was not justified in not giving his finding on legality of action initiated under section 147 of L.T. Act: Notice under section 148 of IT Act was issued on 29th March 2018 on the existing material for which basis appears to be audit objection for the reason that query in respect of all the deduction for the expenses debited to profit and loss account was already examined and allowed by the ld. ....
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.... India Pvt. Ltd. (2023) 452 ITR 224, wherein the apex court dismissed the SLP filed by the revenue and confirmed the view of the Hon'ble Madras High Court. In that decision the Madras High Court held that 16. Thus, in the absence of new facts coming to the knowledge of the Assessing Officer subsequent to the original assessment proceedings, the reopening could not have been done on the same materials. In fact, when we perused the reasons for reopening, it is evidently clear that all the materials have been culled out from the return of income filed by the assessee and the Annexure thereto. Thus, the impugned reassessment proceedings, having been done with the same set of facts which were available during the regular assessment, is to be held to be a clear case of change of opinion. 11. We have heard the rival contention, perused the material placed on record and also gone through the judicious decision serviced before us by both the parties to drive home to their contentions. The bench noted that in this case in the original assessment proceedings both the issues [for which the reopening proceeding initiated ] were there and the assessee has furnished the necessary details and t....
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....hich are verifiable from bank statements or otherwise. In other words, the assessee AOP had incurred just 8% of total expenses in running liquor contract which had achieved turnover of Rs. 2,13,32,12,250/-" 12. Thus it is evident from the above submission that the issue on depreciation and interest payment has already been verified in the original assessment proceedings and the ld. Assessing Officer has already considered the claim of the assessee based on the submission placed before him. We also take note of the fact that in the reasons recorded in this case is that assessee has paid interest payment of TCS and claim on higher rate of depreciation is already decided based on the submission made by the assessee. Therefore, reopening is done merely based on the same material already on record. We find from the order of the ld. CIT(A) that the assessee has challenged the reopening of the case before the ld. CIT(A) in ground No. 1. But the ld. CIT(A) has not decided this ground for the reasons best known to him even through there is a submission of the assessee challenging the proceeding initiated u/s 147 of the Act. The Bench noted that the ld. AR of the assessee has relied upon th....