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Auditor's report: may be filed with a revised return to rectify omission from the original tax return.
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Assessment under section 143(1) not an assessment; revised return filed after intimation remains valid for consideration.
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Share premium taxation under Section 56(2)(viib): excess consideration over fair market value is taxable on closely held companies.
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Taxability of discounted transfers to closely held companies: listed company shares are excluded from gift inclusion, so not taxable.
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Taxability of gifts: transfers from a partnership firm to an individual are taxable when the firm is not a relative.
A gift of immovable property from a partnership firm to an individual is taxable under the gift provisions because a partnership firm is not a "relative" even if the partners are relatives; the stamp duty valuation of the plot is noted for valuation reference.
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Taxability of gifts: gifts received from non-relatives are taxable under the gifts provision, not excluded as relative transfers.
Gifts received by an individual or HUF from persons who do not qualify as "relatives" are taxable as income from other sources; in the example, gifts from a father's cousin and from the recipient's grandfather's elder brother are excluded from the relative exemption and the aggregate amount received from those non-relatives is taxable.
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Gift taxation: stamp duty valuation excess over purchase price becomes taxable from the amendment's effective date under income rules.
The amendment taxes, as Income from Other Sources, the difference between stamp duty value and actual purchase price where consideration is below stamp duty valuation, applying only from the amendment's effective date; transactions concluded prior to that date are not subject to this valuation-based charge.
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Pre-construction interest deduction allows spreading pre-acquisition interest across subsequent assessment years, with current-year interest treated separately.
Pre-construction interest under Sec. 24 is computed for the period from loan drawal to the day before completion; the total pre-construction interest (here computed as principal x months x rate) is capitalised and apportioned equally across the prescribed subsequent assessment years as the annual deduction. Interest accruing in the fiscal year of completion is allowed in that year and amounts accruing between the fiscal year start and actual completion date are excluded from the pre-construction spread.
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Gross Annual Value calculation: vacancy adjustment reduces taxable house property value under applicable law provision.
Annual Lettable Value is the higher of Municipal Value or Fair Rent but capped by Standard Rent, fixed here at 80,000. Annual receipts excluding unrealised rent are 54,000. Deducting vacancy loss of 18,000 from the Annual Lettable Value produces a Gross Annual Value of 62,000 as the taxable base for house property income.
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Gross Annual Value under Section 23 caps assessed value at standard rent; vacancy adjustment affects the GAV calculation.
Gross Annual Value under Section 23 applies the higher of municipal value or fair rent but not exceeding standard rent (63,000) as the Actual Lettable Value; after excluding unrealised rent and adjusting for vacancy, the Annual Rent Receivable is 42,000, taken as the Gross Annual Value under the cited provision.

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Reopening of assessment - Substance over Form - Failure to disclose material fact - Duty of the AO to make an enquiry to test the correctness of the disclosure made even if the statutory forms signed and certified by the Chartered Accountant

10 July, 2019

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2019 (7) TMI 415 - MADRAS HIGH COURT

2018 (10) TMI 442 - MADRAS HIGH COURT

Reopening of the assessment for the year 2010-2011. - Whether ingredients of Section 147 r.w.s 148 are satisfied?

Facts of the case

In the present case, deduction u/s 10B of Income Tax Act, 1961 was allowed to assessee (100% EOU) on the basis of Form No.56G. In the said Form in Column No.8 it is mentioned as 10th year of claim, but, in Column No.7, the date of commencement of manufacturing is mentioned as 28.03.2000. Thus the Assessing Officer stated that the year under consideration happens to be 11th year. The Assessing Officer also referred to the copy of the Form 56G for the assessment year 2001-2002. Accordingly the Assessing Officer informed the assessee that the assessee has exclusively extended its 10B holiday period to the 11th year and hence become ineligible for deduction under Section 10B.

Submission of the assessee

There was no opening stock as on 1.4.2000. The first invoice was raised only on 31.05.2000 to UNICEF, New Delhi. With regard to the date of commencement of manufacturing activity, the assessee stated that the firm came into existence on 20.03.2000, registered as an EOU on 29.03.2000 and has commenced manufacturing activity only after 01.04.2000.

With regard to the discrepancy pointed out by the Assessing Officer in the notice dated 25.01.2017, the assessee stated that the substance over Form is required to be taken into consideration and mere reporting of the date in the Form 56G does not give a conclusive picture as to the date of starting of manufacturing activity which is only in the month of April or which only in the assessment year 2001-02 which has been clearly claimed as the first year of exemption. Therefore, the assessee requested to drop all the assessment proceedings and reopen the assessment.

Single member bench [2018 (10) TMI 442 - MADRAS HIGH COURT], while entertaining the writ petition, has observed that:

Every non disclosure of material facts will not or cannot be a justifiable reason for reopening sustainable under judicial scrutiny.

On the other hand, such non disclosure of a material fact must be of such nature that, but for such non disclosure, the income, relatable to such material fact, would not have escaped assessment. In other words, it should lead to an irrebuttable conclusion that by the conduct of the assessee, either by providing wrong or incorrect particulars or by not providing the full and correct particulars, he should have made the Assessing Officer not to bring a particular income to tax, which is otherwise liable to be taxed. If this test is applied to the present case, I am of the view that the Revenue has to fail.

Revenue took the matter before the division bench of the High Court [2019 (7) TMI 415 - MADRAS HIGH COURT] wherein it was observed that:-

There can be no escape from this fact and the assessee should accept this mistake.................It may be true that the assessee can now take a stand that substance over form is to be considered but what is important is that the assessee at the first instance had a duty to give proper and correct details. We may say that the assessee failed in doing so. Be that as it may, what is required on the part of the Assessing Officer is not to go mechanically by the details disclosed by the assessee in the statutory form and or for that matter signed and certified by the Chartered Accountant. The Assessing Officer being cast with a statutory duty an enquiry is required to test the correctness of the disclosure made in such statutory forms. This is why the concept of substance over form was always preferred by Courts while dealing with such matters.

The second mistake which the assessee committed, which had invited the problem, was not mentioning the correct date of commencement of commercial production in its reply dated 02.02.2007 and this again was submitted through the very same Chartered Accountant. In the reply, there is a vague statement with regard to the commencement of manufacturing activity and what has been stated is that the assessee commenced manufacturing activity only after 01.04.2000. Thus, we are of the view that the assessee appears to have not been very seriously contesting the matter at the relevant point of time. Wisdom dawned upon the assessee only after the appellant passed the order dated 13.02.2017. It is thereafter the assessee through their Chartered Accountant gave the exact date of production/manufacture as 25.05.2000.

Keeping aside all these issues, we have examined the correctness of the order passed by the learned Single Bench and we note with approval the findings of the learned Single Bench in paragraphs 16 and 17 of the impugned order. The above finding rendered by the learned Single Bench is just and proper.

As pointed out by the learned Single Bench every non-disclosure of material facts will not or cannot be a justifiable reason for reopening an assessment. We reiterate that what was required to be considered is that, substance over form.

Therefore, we are of the considered view that the learned Single Bench was perfectly right in allowing the writ petition which had been done after thorough examination of the facts and the legal position. In our considered view the revenue has not made out any grounds to interfere with the order passed by the learned Single Bench.

 


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2019 (7) TMI 415 - MADRAS HIGH COURT

2018 (10) TMI 442 - MADRAS HIGH COURT

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Acts Income Tax