The Revenue which is in Appeal before the Court, is aggrieved by the order of the ITAT dated 13.03.2009 in ITA-2280/Del/2005. It urges the following substantial question of law for determination by this Court
We have heard rival submissions and have gone through the entire material available on record. Learned DR contends that ITAT in respect of above years while upholding the deletion of penalty u/s 271-D, has not considered the aspect of each transactions while ascertaining reasonable cause. In our view it is not so in as much as ITAT has consciously considered this aspect at more than one places and has held that AO though agreed that assessee has reasonable cause in mobilizing these deposits in rural and semi-urban areas, was not justified in levying penalty by holding that transactions based reasonable cause has not been spelt out.
This Court has heard the counsel for the parties. Learned counsel for the assessee argued that having regard to the facts, the ultimate disallowance was on account of Section 170(1) which was not even reflected in the orders of the lower authorities, nor adverted to by the orders of the lower authorities as well as the Tribunal in either round of litigation, i.e. quantum and penalty. Such being the case, the upholding of the quantum proceedings by the Court could not have been the only basis for the imposing of the penalty.
For the purpose of claiming benefit of deduction of the sum paid against the liability of tax, duty, cess, fee, etc., the year of payment is relevant and is only to be taken into account. The year in which the assessee incurred the liability to pay such tax, duty, etc., has no relevance and cannot be linked with the matter of giving benefit of deduction under Section 43B of the Act.
When there was intensive examination in the first instance in respect of the issue, which was the basis for re-opening of assessment, it was necessary for the AO to indicate, what other material, or objective facts, constituted reasons to believe that the assessee had failed to disclose a material fact, necessitating reassessment proceedings.
The assessee, a chamber of commerce and industry, in the course of pursuing its objects rendered several services, such as, certification, committee room services, secretarial services and facilities, energy audit, etc. to its members and non-members for a fee. It was registered under section 12A. From the assessment year 1996-97 up to the assessment year 2005-06, it was granted exemption under section 11.
In the result, the substantial question of law framed in ITA No. 1132/2007 is answered in the negative in favour of the Revenue and against the assessee. However, an order of remit is passed directing the Assessing Officer to make a fresh assessment in accordance with law. In ITA No. 583/2010, no substantial question of law arises and it is accordingly dismissed. No costs.
Held that, In the case of LPG cylinders, the transaction was only a financing transaction and was not a lease as there is no material to show that the assessee became the owner of the cylinders and leased them to Janta; in the case of airjet spindles and positar disc, the very existence of the assets and the genuineness of the purchase of the assets by the assessee was not proved. In both the cases, therefore, the assessee was not entitled to depreciation.
When the similar issue arose in AY 2005-06, the ITAT again following its own order for AY 2004-05, upheld the order of the learned CIT(A) deleting the disallowance of commission paid to directors. Admittedly, the facts of the year under consideration are identical. Therefore, respectfully following the above decision of ITA T in assessee ’s own case, we uphold the order of learned CIT(A) and dismiss the Revenue’s appeal.
The Revenue preferred an appeal to the Tribunal in ITA 398/Del/2006. As seen from paragraphs 6 & 7 of the impugned order of the Tribunal, the Revenue disputed before the Tribunal the contention of the assessee that it had furnished the confirmation letters from the share applicants along with their income tax details, statement of bank accounts etc. The assessee, as seen from paragraph 5 of the impugned order had contended that the share subscribers were assessed to tax and since their identity stood established, no addition can be made in the hands of the assessee, having regard to the judgment of the Supreme Court cited above.
