A perusal of the assessment order clearly shows that Smt. Madhumita Paul, had been summoned under section 131 of the Act and her statements have been recorded. It is shown in the statements recorded that Smt. Madhumita Paul did do work at the business premises of the assessee firm.
Assessee, in fact, was enjoying possession of the impugned property and for peaceful vacation thereof it had received the impugned amount which was described by both parties as amount paid for surrender of tenancy rights. The assessee had acquired the said right long back and the licensor to the assessee also had recognised the said right of the assessee.
In the instant case, it is not in dispute that the demolition of the building took place at the behest of the assessee and it is not an act of God in which event, it has to be said that demolition of house would fall within the definition of ‘transfer’. This aspect was not properly analysed by the ITAT in the case of co-owner since the subsequent decision of Hon’ble Supreme Court in the case of Grace Collis (supra) was not brought to the notice of the Co-ordinate Bench. Since this aspect was not looked into by learned CIT(A), we deem it fair and reasonable to set aside the matter to the file of learned CIT(A) who is directed to reconsider the matter in accordance with law in the light of our above observations.
We further note that in this case the loan agreement was for fixed rate of interest. The LIBOR has been accepted in decision referred above as the most suitable bench mark for judging Arms’ length price in case for foreign currency loan. Hence, adjustment as made by the TPO is not warranted.
This is not denied that the assessee is engaged in the business of providing credit facilities to its members. The credit facilities cannot be provided until and unless the assessee receives the deposits. It cannot always be provided out of its own capital. Receiving of the deposit is necessary and essential for advancing the money on credit and earning the interest income. The deposits may not have been derived from the income for providing the credit facilities to the members.
Now we come to argument of the assessee that there is no change in the operating model or the business activity of the assessee company, hence, rule of consistency should be followed and hence no adjustment is warranted. In this regard we are of the opinion the res judicata is not applicable to taxation cases. Moreover, as held by Apex Court in Distributors (Baroda) (P.) Ltd. (supra) that to perpetuate an error is no heroism. To rectify is the compulsion of the judicial conscience.
That apart, the learned counsel for the assessee has rightly contended that the provisions of section 80IA(5) of the Act applies in computing the profits of an eligible business for the purposes of working out the quantum of deduction for the initial assessment year and for every subsequent year thereafter. The incentive deductions both under section 80 IA and 80 IB of the Act have the concept of initial assessment year in respect of almost all eligible business.
The Ld. CIT DR made efforts to support the order of TPO on obtaining information. While agreeing with his arguments on power of AO/TPO in obtaining information u/s 133(6), on which there is no dispute, what is objected to by assessee is not providing such information to it.
Once in a particular trust, some default came to the notice of a trustee managing its affairs and the same trustee is also managing the affairs of other trust then, if the trustee of the second trust voluntarily comes forward before the department and discloses material facts, which have been duly accepted by the department, then it cannot be said that assessee’s conduct was not bona fide or voluntary. It can be said to be a case of concealment only when income comes to the notice of assessee but he still withholds the same from disclosing to the department.
It is well-settled law that merely on the ground of low gross profit ratio, the addition to the assessee’s returned income cannot be made. Even if, the assessee’s profit and loss account is discarded by the Assessing Officer, it has to be examined whether the Assessing Officer adopted the rational basis for making the addition. In the present case, we find that the Assessing Officer merely referred to the discount of 10 per cent. offered by retailers on the printed price but did not demonstrate as to how that affected the gross profit declared by the assessee. He had not brought on record any comparable case, wherein, the net profit declared by a tax payer in the similar business, was higher, than the one declared by the assessee.
