Tribunal relying on its decision in case of Radhe Developers v. ITO [2008] 23 SOT 420 (Ahd.) held that respondent assessee would be eligible for deduction under section 80-IB(10) of the Act on the housing project development though the assessee may not be the owner of the land.
Obviously therefore, the Assessing Officer of the searched person during the pendency of the assessment proceedings, could not have arrived at the satisfaction that the income was that of the present assessee and not the persons originally searched.
Rule 24 of the Income Tax Rules, 1963 makes it abundantly clear that the Tribunal cannot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in person or through an authorised representative. It is incumbent upon the Tribunal to dispose of the appeal on merits after hearing the respondent and afterwards if the appellant appears and satisfy the Tribunal, sufficient cause for its non-appearance on the date of hearing, the Tribunal can set aside the ex parte order and restore the appeal. However, reliance of the Tribunal on the decision of the Delhi Bench in the case of Multiplan India (P.) Ltd. (supra) is erroneous and, therefore, requires to be set aside. In the instant case, it can be noted from the letters addressed by the present appellant to the Tribunal that it was awaiting transfer of both the appeals of 1998-99 and 1999-2000 since CIT (Appeals) had relied upon such orders of earlier years.
In the instant case, as can be noted from the findings of the Tribunal, Assessing Officer had not summoned any of the donors. However, it had issued the letters under section 133(6) of the Act. Assessing Officer had also called for confirmation letters which were received by it. The assessee also had furnished all other requisite documents like copies of DD, gift deed, copy of PAN cards, copy of acknowledgment of returns of the donors along with computation and balance sheet. It also found that all the donors were assessed to tax except one who was based at USA. On thus having found identity of the donors so also creditworthiness and genuineness of the transaction having been established, Tribunal did not accept the say of the Revenue that the gifts were bogus.
The learned CIT(A) on proper examination of evidences and material rightly came to the conclusion that software is intangible asset and was loaded in the system of machine. The learned CIT(A) also rightly held that installation of software could be checked by the technical person whether it was loaded in the system or not. Therefore, the finding in the survey cannot be relied upon. Even the AO has accepted the fact that some of the software were developed locally and installed in the system.
Assessee was statutorily required to keep share application money in the separate account till the allotment of shares was completed. Interest earned on such separately kept amount was adjusted towards expenditure for raising share capital. We are therefore, of the opinion that interest earned was inextricably linked with requirement of company to raise share capital and was thus adjustable towards the expenditures involved for the share issue. Line of decisions of Apex Court in case of Bokaro Steel Ltd. (supra), Karnal Co-operative Sugar Mills Ltd. (supra) and Bongaigaon Refinary and Petrochemicals Ltd. (supra), would closely match with the facts of the present case.
Assessing Officer committed an error in resorting to explanation to section 73 of the Act. The issue before him was whether the income earned by the assessee through sale of shares should be taxed as business income or should be treated as capital gain. Such issue had to be decided on the basis of the question whether the assessee is involved in any business of buying and selling shares or had purchased and sold the shares by way of investment.
Tribunal deleted the addition made on account of difference of balances of Rs.14,03,85,459/-. The Tribunal after considering the explanation of the assessee-respondent and the findings of the CIT(A), recorded the reconciliation statement substantiated by necessary evidence which had been furnished by the respondent assessee. The remand report of the Assessing Officer was also called for here. In absence of any difference in details and reconciliation statement furnished by the assessee, the CIT(A) deleted the addition and the same came to be confirmed by the Tribunal. There being no material to take a contrary view & as both the authorities have concurrently held to delete the said addition, we find on reason to interfere in this question.
Assessee is a limited company. The Government of Gujarat floated Sale Tax Deferment Scheme. For facilitating the industrial units to avail such benefit of the Sale Tax Incentive Scheme in the State, pari passu charge was to be created in favour of the Sales Tax Department, as decided by the Government of Gujarat and as such deferred amount of sales tax was considered as a “deemed loan” and the present respondent acted as a nodal agency for the scheme.
The Commissioner after recording cogent reasons found that the order passed by the Assessing Officer was erroneous and also prejudicial to the interest of the Revenue. He was therefore, on facts of the case entitled to exercise revisional powers under section 263 of the Act. While doing so, he remanded the proceedings before the Assessing Officer for full inquiry and fresh consideration. He had not given any specific directions to consider the issue in particular manner. In any case, the Tribunal further clarified this issue in the impugned order as can be seen from the noted portion of the order itself.
