Before going into writ raise objections to Notice u/s 148 before AO
Crown Consultants (P.) Ltd. v. CIT [2014] 362 ITR 368/224 Taxman 81 (Mag.)/44 taxmann.com 397 (Bombay High Court) has taken a view that where an objection is not taken before the Assessing officer while responding to the reasons in support of a notice seeking reopen an assessment, then it is not open to assessee to raise such objection for the first time before this (High) Court in writ proceedings under Article 226. The exception of course being if the impugned notice is ex-facie without jurisdiction and no determination of facts are required to establish it is without jurisdiction.
Intimation u/s 143(1) is not assessment for the purpose of revised return
Revised Return can be filed even after intimation u/s 143(1) is issued since the same is not considered as an assessment order in the court law though referred to as summary assessment. Since even after the issuance of intimation u/s 143(1), regular/scrutiny assessment can be done without any restriction. There is a case law of Gujarat High court in which the court held that the assessee can file revised return even after intimation is served . S. R. Koshti v. Commissioner of Income-tax [2005] 276 ITR 165 (Guj). The issue is settled to rest by the decision of Supreme Court in the case of ACIT vs Rajesh Javeri Stock Brokers (P) Ltd. 291 ITR 500 in which it was held that intimation although deem to the notice of demand U/s. 156 can not taken as assessment order. Revised return can be filed after intimation u/s 143(1)(a)-AO must amend such intimation on the basis of revised return-Gujarat HC [2011] 333 ITR 0508 Commissioner of Income-tax Versus Himgiri Foods Limited
CBDT vide letter dated 11-07-2016 has provided three revised format of issuing notices u/s 143(2). 1. Limited Scrutiny 2. Complete Scrutiny 3. Mannual Scrutiny
CBDT vide letter dated 11-07-2016 has provided three revised format of issuing notices u/s 143(2).
- Limited Scrutiny
- Complete Scrutiny
- Mannual Scrutiny
In Limited Scrutiny, issues identified for examination to be specified. Notice for Complete scrutiny shall specify that case is selected for complete scrutiny. In case of manual scrutiny, specific parameter for selection of case along with reference to manual instruction no. of compulsory scrutiny guidelines shall be given.
Assessee is required to produce evidence in support of his return or if assesse wishes to send no evidence, he may send his communication to AO.
If on the basis of response of assesse, any adverse view is contemplated, show cause notice/questionnaire shall be given .
In case of Ahemadabad, Bengluru, Chennai, Delhi , Hyderabad , Kolkatta and Mumbai, it is to be stated in notice that email based assessment is proposed to be made. Email id provided by assesse in return or alternate id provided by the assesse shall be used for the purpose. Assessees not wishing to opt for email based assessment may convey refusal to AO. Subsequent withdrawl from email based assessment is possible only with prior permission of AO.
Also in Instruction No. 20/2015 dated 29-12-2015, CBDT had mentioned that AO to provide reasons for scrutiny in cases which have been selected on the parameter(s) of AIR/CIB/26AS data . Further Specific issue based enquiry is to be conducted only in those scrutiny cases which have been selected on the parameter(s) of AIR/CIB/26AS data. In such cases, the Assessing Officer, shall also confine the Questionnaire only to the specific issues pertaining to AIR/CIB/26AS data
Tug of War for Limitation period for penalties not linked to assessment of Income like 271D/271E/271C imposable by Range Heads i.e. Joint Commissioners
Under Section 271D penalty is imposable by Joint Commissioner for failure to comply 269SS i.e. accepting loan or deposit for Rs. 20,000/- or more otherwise than through account payee cheque equal to amount of loan or deposit. Similarly Under Section 271E, there is penalty for repayment of the amount of loan or deposit otherwise than through account payee cheque, where loan or deposit is outstanding for Rs. 20,000 ruprees or more.
In the case of World wide Township Projects, there were certain credits in the balance sheet of the assesse, which he explained were on account of land purchased on his behalf by certain persons. AO said that since the transaction falls u/s 269SS, penalty proceedings are liable to be initiated. Although, the Assessing Officer, by its assessment accepted the income as returned by the assessee he issued directions for initiating penalty proceedings under Section 271D of the Act for alleged violation of the provisions of Section 269SS/269T of the Act. CIT A rejected the appeal filed by the assesse. Penalty thereafter was imposed. The assesse in appeal contended that penalty order is barred by limitation.
U/s 275(1)(a), where relevant assessment order is subject matter of appeal penalty order can be passed
- a)before the expiry of financial year in which the proceedings, in the course of which action for imposition of penalty has been initiated, are completed OR
- b)within one year from the end of the financial year in which the order of the Commissioner (Appeals) is received by the 2[Principal Chief Commissioner or] Chief Commissioner or2[Principal Commissioner or] Commissioner,
which ever is later
However, it was opined by the Delhi High Court in World Wide Township Projects that penalty u/s 271D/E has no relevance to assessment of Income and also the appeal proceedings there to have no relevance to initiation of penalty proceedings for violation of S. 269SS/T.
Hence section 275(1)(c) shall be invoked in such a case and hence limitation period shall be later of :
- a)the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed OR
- b)six months from the end of the month in which action for imposition of penalty is initiated.
Since the period of limitation u/s 275(1)(c ) had expired in the above case, no penalty can be levied u/s 271D/E
Also Rajasthan High Court in Hissaria Bros 291 ITR 244 (Raj.) has held that to interpret otherwise shall result in provisions of S. 271D/E being declared redundant. High Court held that the same is also true for penalty levied for non deduction of tax.
CBDT in circular No. 10/2016 dated 26-04-2016 has accepted the above position of law.
And has taken a stand that in case of penalties not linked to assessment, limitation period shall be governed by S. 275(1)(c) and not 275(1)(a)
The next issue comes the Determination of point of initiation of penalty because penalty limitation period is end of financial year in which penalty proceedings initiated or six months from the end of month in which penalty proceedings initiated.
Hence whether penalty shall get initiated during assessment proceedings mentioning the default in his assessment order or when penalty notice is issued by Joint Commissioner.
Kerala High Court in Grihlaxmi Vision [63taxmann.com 196] has pronounced that from statutory provision, it is clear that the competent authority to levy penalty is the Joint Commissioner. Therefore, only the Joint Commissioner can initiate proceedings for levy of penalty. Such initiation of proceedings could not have been done by the Assessing Officer. The statement in the assessment order that the proceedings under sections 271D and E are initiated is inconsequential. On the other hand, if the assessment order is taken as the initiation of penalty proceedings, such initiation is by an authority who is incompetent and the proceedings thereafter would be proceedings without jurisdiction. If that be so, the initiation of the penalty proceedings is only with the issuance of the notice issued by the Joint Commissioner to the assessee to which he has filed his reply
CBDT in Circular 9/2016 dated 26-04-2016 has asked officials to follow Grihlaxmi Vision (Kerala High Court) and has termed it as “Departmental View”. Special Bench of ITAT Chandigarh in Dewan Chand Amrit Lal (2006) 98 ITD 200 has upheld the same view.
CBDT has also stated that The Assessing Officer, (below the rank of Joint Commissioner of Income Tax) shall not issue the notice in this regard. The Range Head will issue the penalty notice and shall dispose/complete the proceedings within the limitation prescribed under section 275(1)(c) of the Act.
However Rajasthan High Court in Jitendra Singh Rathore [2013] 31 taxmann.com 52 (Rajasthan) has pronounced that “………………that even when the authority competent to impose penalty under Section 271D was the Joint Commissioner, the period of limitation for the purpose of such penalty proceedings was not to be reckoned form the issue of first show cause by the Joint Commissioner; but the period of limitation was to be reckoned from the date of issue of first show cause for initiation of such penalty proceedings………….”
The decision of Rajasthan High Court has been followed by ITAT Rajkot in Dipak Kantilal Takvan [2013] 39 taxmann.com 53 (Rajkot – Trib.) (TM) and Jaipur Tribunal in MDS University [2014] 49 taxmann.com 297 (Jaipur – Trib.) JANUARY 23, 2014
Introduction of a new entry and inclusion of certain services in that entry would pre-suppose that there was no earlier entry covering the said services
Bombay High Court in the case of Indian National Shipowners’ Association-v.-Union of India, 2009 (14) STR 289, at paragraph 38 of the judgment, held in the context of the Finance Act, 1994 that introduction of a new entry and inclusion of certain services in that entry would pre-suppose that there was no earlier entry covering the said services
Lawyers presumed to Know law, not judges
There is presumption in law that lawyer knows the law but there is no absolute presumption that a judge should know the law. A Judge is only called upon to balance the two sides of an argument presented before him
Rajiv Narain Raina inPunjab and Haryana High Court in Nirmal Singh and Others vs. Tarsem Singh and Others [CR No. 3791 of 2013 (O&M) dated 01-05-2014]
No Addition u/s 69C for actual expenditure lesser than presumptive expenditure
Under Section 44AD, 8% of Income is presumed to be Income of the assesse. Hence automatically 92% shall be presumed to be expenditure of the assesse. Now, if assesse through his cash flow is not able to prove expenditure of 92%, but is able to substantiate much lesser expenditure, whether AO can invoke section 69C saying that source of balance expenditure [92%- Actual Expenditure] is not satisfactorily explained especially when section 44AD does not over ride section 69C.
Held by ITAT Chandigarh in Nand lal Popli [2016] 71 taxmann.com 246 (Chandigarh – Trib.)]
- a)Section 69C can be applied only if assesse has incurred some expenditure and not otherwise
- b)Asking the assessee to prove to the satisfaction of the Assessing Officer, the expenditure to the extent of 92% of gross receipts, would defeat the purpose of presumptive taxation as provided under section 44AD of the Act or other such provision. Since the scheme of presumptive taxation has been formed in order to avoid the long drawn process of assessment in cases of small traders or in cases of those businesses where the incomes are almost of static quantum of all the businesses,
Addtion u/s 69C can be made only once the case is carved out of glitches of S. 44AD. Hence no addition is sustainable u/s 69C
Cash flow statement cannot be considered as keeping the books of account
Keeping or preparing a cash flow statement cannot be considered as keeping the books of account.[Para 15 of Judgement in case of Nand lal Popli [2016] 71 taxmann.com 246 (Chandigarh – Trib.)]
No Capital Gain without incurring cost
Where Whole amount of sale consideration was taxed by the Assessing Officer as capital gains without giving assessee any benefit with regard to cost of acquisition or cost of construction because the assesse could not prove the expenditure.
Held by ITAT that It can be nobody’s case that the assessee had acquired the property without paying any cost. Some value for cost of acquisition has to be given to the assessee. Even in cases of properties acquired through gifts, etc. the cost of acquisition as incurred by the previous owner is given to the assessee.
Nand lal Popli [2016] 71 taxmann.com 246 (Chandigarh – Trib.)]