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A plain reading of Section 281B of the Act clearly spells out that the Assessing Officer is empowered to pass order for provisional attachment to protect the interests of the revenue in certain cases during the pendency of any proceeding for the assessment of any income or for the assessment or reassessment of any income which has escaped assessment.
As per the Assessing Officer, the petitioner should be treated as an agent of Mr. Ivo Perica. For the salary income that Mr. Ivo Perica received for the work done in India having not paid tax, such tax could be recovered from the petitioner. For some strange reason, however, when the impugned notice was issued, the petitioner was described as an agent of M/s. A Monforts Textilmachinen Gmbh and Co. i.e. the foreign company.
In the present case, we find that the Assessment Order does not give effect to the amount seized in the calculation of tax payable at the end of the Assessment Year in question. Further, there is no Demand Notice and there is no basis for claiming interest on advance tax due on 15th September, 15th December and 15th March. On account of this vagueness, leaving the question of law open, the civil appeal filed by the Department is dismissed.
Even though the assessment order mentions date of receipt of profit on sale of shares as 4.2.2004 and the amount is claimed to have been received from the company M/s DN Kansal & Securities (P) Ltd., the AO or the ld. CIT(A) did not analyse the nature of transaction as to how it is loan or advance nor ascertained accumulated profits of the said company until the date of transaction.
A reading of Section 32(2) thus makes it clear that if the unabsorbed depreciation allowance could not be wholly set off under clause (i) and clause (ii), the amount of depreciation not so set off can be set off from income from other head, if any, available for that assessment year. The language of Section 32(2) is very clear and there is hardly anything contained in Section 72(2) to prevent such set off of carried forward depreciation being given to the assessee under the head of income from business or income from other sources.
When the bona fideof the transaction and the actual sale consideration received by the assessee has not been suspected, then for the purpose of computation of capital gains, the full value of consideration can not be substituted by market price or value of the capital asset as on the date of transfer.
The AO examined the details of legal and professional charges paid by the company and noticed that the claim of Rs.5 lacs paid to M/s Kotak Mahindra Capital Company Ltd towards placement fees and earned dividend income which was claimed exempt u/s 10(34) of the Act. The company did not make any disallowance for the purposes of section 14A of the Act.
Since no assessment order can be passed after the expiry of the prescribed time-limit, no proceeding can be taken in it. Moreover, proceeding for assessment/reassessment under section 147 are specifically excluded from the purview of case as defined under Section 245A(b). Thus, there is no question of proceedings of the type which are subject matter of this petition can be said to be pending.
Reverting to the facts of the instant case, it is seen that insofar as the second reason is concerned, the Assessing Officer initiated reassessment proceedings with a view to ‘examine’ whether the assessee had accumulated reserve. Obviously, the scope of section 147 cannot encompass such an action under which certain examination is to be conducted for forming a reason to believe as to the escapement of income.
In the present case, the evidence in the form of confirmatory letters, deed of gifts etc. were found during the course of search. The authorities on examination of the confirmatory letters and surrounding circumstances reached a prima facie view that the gifts were not genuine. A notice dated 27.06.1996 under Section 158BC of the Act was accordingly issued.
