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Normally my advise would be that if there be no point of law, if its a matter of fact, then I think with the two appeals at the commissioner’s level the department need not rush to the High Court if there be no point of law concerned, Mukherjee said which addressing I-T officials here.
After hearing the rival submissions and on careful perusal of materials available on record, keeping in view of the fact that sufficient opportunity of being heard to AO has not been given by ld. CIT(A) for preparation of Remand Report and further keeping in view of the fact that all the materials placed before ld. CIT(A)has not been sent to AO for his consideration, in our considered opinion, the order of ld. CIT(A) is not in accordance with the principles of natural justice. Therefore we set aside the order of ld. CIT(A) and restore the matter to the file of AO to re-decide all the three issues afresh by taking into consideration of the various submissions and documents placed before ld. CIT(A) and after giving a reasonable opportunity of being heard to assessee.
It is not disputed that the directors of the company have undergone foreign travelling for the purpose of export and looking for the business avenues abroad. The details submitted by the assessee though only provides the date of travelling, details of country visited and amount of fare, visa charges and other miscellaneous expenses incurred, however, the Assessing Officer has not brought anything in record to show that the foreign travelling was for personal purposes. Once the foreign travelling has been accepted for the purpose of business then part of the amount cannot be disallowed on account of personal user unless it is established that there was personal and non business expenditure. Since no basis has been given nor anything adverse has been brought on record, the ad hoc addition of Rs. 5,00,000/- cannot be disallowed. Thus, the order of the CIT(A) confirming the addition is set aside and accordingly, ground of appeal No.2 is allowed.
Notification No. 10/2012-Income Tax The president is pleased to appoint the following IRS(IT) officers in the grade of ACIT(Junir Scale) in the pay scale of Rs. 15,600 to Rs. 39,100 with effect from the dates stated against their names. Notification No. 10 of 2012 appointing IRS Officers As Assistant CITs
The ld. counsel for the assessee contended that the ld. CIT(A) was not justified in sustaining the disallowance of interest for the reason that the assessee was already doing its business from a rented premises. The new office premises and godown were stated to have been added in the current year to carry on the same business. It has thus been canvassed that the mandate of proviso to section 36(1)()iii) will not apply.
Notification has permitted the development of the land only for hotel; therefore, after the said notification, the land in question cannot be developed other than hotel and there is no dispute on this point that the land was finally developed by constructing the hotel by the assessee. Even, the MCGB vide its letter dated 10.6.1994 has acknowledged this fact that 50% of the land in question is reserved for recreation ground and the remaining 50% is deleted from the reservation and placed in Local Commercial Zone (C-I) for specific purpose of Hotel projects only.
It is necessary that the assessee or the person concerned liable to deduct and pay the TDS must be responsible for paying to a resident any sum, by way of fees for professional services, fees for technical services, royalty or any sum referred to in clause (va) of sec. 28. Whereas just contrary to the said conditions, in the instant case, the assessee company has not paid even a single penny to its super stockiest. Rather, it is just the opposite. The super stockist is paying to the assessee company for the produce of Drugs.
Section 201(1) uses the expression ‘any person, who is required to deduct any sum in accordance with the provisions of the Act…..’. Assessee’s stand was that there was no such requirement. As per the provisions of section 194C, an amount has to be deducted out of the sum in pursuance to a contract, at the time of payment/credit towards income-tax on the income comprised therein in terms of section 194C. When a particular sum is not income at all for an assessee, the requirement of making TDS is non-existent.
Secs. 271C, 271D and 271E, which were inserted in the I T Act w.e.f. 1st April, 1989, by the Direct Tax Laws (Amendment) Act, 1987, provided for the levy of penalties for certain defaults. Penalty under s. 271C was levied for failure to deduct tax at source. Penalty under s. 271D may be levied for failure to comply with the provisions of s. 269SS i.e. for taking or accepting any loan or deposit in excess of Rs. 20,000 otherwise than by an account payee cheque or bank draft. Penalty under s. 271E may be levied for failure to comply with the provisions of s. 269T relating to repayment by a company, including a banking company, a co-operative society or a firm, of deposits, including interest, exceeding Rs. 20,000/- the aggregate otherwise than by an account payee cheque or bank draft.
This Court had the occasion to consider similar issues in a Judgment delivered in the case of DIT (Exemption) v. Chembur Gymkhana [Income Tax Appeal No. 5568 of 2010, dated 13-2-2012]. This Court, following the law laid down by the Supreme Court, has held that the fact that the membership of the club is open to a section of the community would not detract from the fact that the club has been constituted for the advancement of any other object of general public utility.
