Assessee has filed writ petition against order passed by the Director General of Income Tax (Exemptions), for denying them exemption under Section 10(23C)(vi) of the Income Tax Act, 196, on the ground that the aforesaid institute was not directly imparting education and had not employed teachers who were teaching or giving lectures to the students.
irst Petitioner does have serious issues to be urged before the Commissioner of Income Tax (Appeals) in appeal. This is a case where the Assessing Officer while exercising the jurisdiction under Section 220(6) and the Director of Income Tax ought to have granted a complete stay of demand. The Assessee has highlighted the nature of its activities in several applications filed in support of the plea for stay and also explained its financial position. None of this has been taken into account while disposing of the application for stay.
The case of respondent no. 1 is that all correspondence / dealing by the petitioner with the Complainant Board in this regard have been with the Northern Regional office at New Delhi, within territorial jurisdiction of Delhi Courts. The petitioner did not make application for registration with SEBI as required under statutory obligation to wind up the schemes and repay the investors as prescribed Under Section 73 of SEBI (CIS) Regulations 1999. As per the said Regulation, petitioner was required to file report with SEBI on prescribed format. He did not do so. The statutory report (Winding up and Repayment Report) has also not been filed till date. The cause of action therefore, accrued in Delhi. The petitioner also had its Office at Delhi at B-30, Safdarjung Enclave, New Delhi, within the territorial jurisdiction of Delhi Courts. More so, the communication received on the letter head of the company thereby disclosing the office of accused company is on record, at Delhi.
The assessee has not claimed depreciation on goodwill it acquired commercial rights to sell products under the trade name and paid consideration in dispute for acquiring marketing and territorial rights to sell through dealers and distributors i.e. the network created by the seller for sale in India. Under the agreement. It become entitled to use of infrastructure developed by the seller. Rights were acquired since 1.4.1998 and these rights have all along been treated as an asset entitled to depreciation and depreciation was actually allowed in the past.
The decision of Bombay High Court in the case of Kalpataru Colours & Chemicals (supra) has been set aside and reversed by the Supreme Court in their decision dated 8.02.2012 in the case of Topman Exports Vs. Commissioner of Income Tax, Mumbai (C.A. No.1699/2012) and other cases. In this decision, it has been held that the DEPB credit falls under Clause (iiib) of Section 28 of the Act whereas the premium received thereon on transfer will represent profits chargeable under Section Clause (iiid) and the deduction under Section 80HHC has to be computed accordingly. It was held that only 90% of the “profits” can be excluded by applying Explanation (baa) below Section 80HHC.
High Court held that as it was not a case of actual payment, i.e., expenditure but only a provision was made in the books of accounts in respect of the excise duty payable while disputing the liability to pay the duty. Therefore, it was a case of the trading liability and the question of cessation or remission of liability was relevant and material for deciding whether or not Section 41(1) of the Act is applicable.
The Delhi high court has stated that while issuing a notice under Section 138 of the Negotiable Instruments Act, an omnibus notice without specifying the amount due under the dishonoured cheque, not even calling upon the alleged accused to pay the amount of cheque, will not meet the requirement of the law. Quashing the complaint in the case, Brainobrain Kids Academy Ltd vs Continental Advertising Ltd, the court noted that the demand for return of the amount is an essential ingredient to constitute an offence punishable under Section 138 of the Act. Thus, if the amount is not specified, the same cannot be said to be a valid demand.
For the purposes of Section 80IB (10) it is not the mandate of the Section that the housing project must be on a vacant plot of land having minimum area of one acre and that where a new housing project is constructed on a plot of land having minimum area of one acre but with existing housing projects would qualify for Section 80IB (10) deduction.
There is no finding recorded by assessing officer that any details supplied by the assessee in its return were found to be incorrect or erroneous or false. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars.
Assessee filed Writ petitions against the order passed by Chief Commissioner for not allowing waiver interest under Section 234A, 234B and 234C of the Act. Held that, the petitioner will be entitled to waiver of interest to the extent of 30% in two assessment years on the two grounds. Firstly, this is not mentioned in the impugned order passed by the Chief Commissioner of Income Tax dated 7th April, 2008.
