ITAT Lucknow

Section 254(2)- Tribunal cannot review its own order: ITAT

ITO Vs Shri Khaliq Ahmed (ITAT Lucknow)

If the Revenue has any grievance against the order of the Tribunal, the Revenue can go before the High Court by filing appeal u/s 260A. The Tribunal cannot recall its own order in the garb of power vested u/s 254(2) of the Act....

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Ex-parte order for non-attendance during lockdown is unjustified

Uttar Pradesh Water Supply and Sanitation Mission Vs ACIT (ITAT Lucknow)

Uttar Pradesh Water Supply and Sanitation Mission Vs ACIT (ITAT Lucknow) Passing ex-parte order when assessee could not attend the proceedings due to lockdown is not justified in law. Since Ministry of Home Affairs, Government of India, vide letter dated 24th March, 2020 had issued directions for stopping of the work of all offices for [&...

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No TDS on ocean freight paid to non-resident shipping companies

Shri Suresh Khatri Vs ITO (ITAT Lucknow)

Shri Suresh Khatri Vs ITO (ITAT Lucknow) Ground Nos. 1 to 3 of the appeal relate to the disallowance of Rs.6,42,437/- for non deduction of tax at source u/s 40(a)(ia) of the Act on payment of ocean freight, made to non-resident shipping companies. The assessee is a proprietary concern and engaged in the business of […]...

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TCS not applicable on Scrap generated from Trading Activities

Lala Bharat Lal & Sons Vs ITO (ITAT Luknow)

The issue under consideration is whether the TCS u/s 206C at 1% will be applicable on sale of scrap not generated out of manufacturing activities?...

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ITAT stays tax demand because the assessee has a prima facie case in its favour

Lucknow Development Authority Vs ACIT (ITAT Lucknow)

Lucknow Development Authority Vs ACIT (ITAT Lucknow) 2012-13, 2013-14, 2014-15, 2015-16 & 2016-17 Therefore, at the end ITAT approved to stay the outstanding demand for a period of six months from the date of this order or till disposal of the appeals, whichever is earlier, provided the assessee deposits the above noted amounts within...

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Approval of PCIT mandatory to convert Limited Scrutiny to a Complete Scrutiny

Ravi Prakash Khandelwal Vs DCIT (ITAT Lucknow)

Jurisdiction of the Assessing Officer while making assessments in Limited Scrutiny cases, by initiating inquiries on new issues has to comply with mandatory requirements of the relevant CBDT Instructions dated 09.2014, 29.12.2015 and 14.07.2016, i.e. the approval of the PCIT....

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Fresh additions cannot be made in assessment due to revisional order u/s 263

M/s. Model Tanners (India) (P) Ltd. Vs. ACIT (ITAT Lucknow)

While framing of assessment in pursuance of revisional order passed under section 263, AO was entitled to consider only those items which had been considered by CIT and was not entitled to consider any other item afresh for making addition....

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Warehouse Sub-Letting Rent cannot be taxed as ‘income from house property’

Sushil Tuli Vs ITO (ITAT Lucknow)

There are two pre-conditions for charging the income as income from house property under section 22 of the Act. Firstly, the assessee must be the owner of the property. Also, the property must not be occupied by the assessee for the purposes of his business or In other words, the property should be a residential property....

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Section 80G approval cannot be rejected on the ground that society is not engaged in charitable activities

Shiv Raj Sharma Shiksha Samiti Bilaspur Vs CIT (ITAT Lucknow)

Shiv Raj Sharma Shiksha Samiti Bilaspur Vs CIT (ITAT Lucknow) It is well settled position of law that at the time of granting approval under Section 80G of the Act, what is to be examined is the object of the trust and so far as the aspect of income is concerned, the same can be […]...

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TDS U/s. 194C deductible on AMC for repairs/maintenance of computers

Jagran Prakashan Ltd. Vs ACIT (TDS) (ITAT Lucknow)

Expenditure on account of AMC for repairs and maintenance of computers installed at assessee’s office premises were payments of contractual nature without involving any technical or professional skill or knowledge. Therefore, TDS was rightly deducted by assessee under section 194C, instead of 194J....

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No addition on mere frequent withdrawal and deposit of own money

DCIT Vs Smt. Veena Awasthi (ITAT Lucknow)

Addition made by AO merely on the ground that assessee made frequent withdrawal and deposit of his own money was not justified as the same was not prohibited under any law....

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No penalty on surrendered amount in revised Income Tax return

Dy. CIT Vs Sushrut Institute of Plastic Surgery (P) Ltd (ITAT Lucknow)

Since assessee had included the surrendered amount in its revised return and no such concealment or non-disclosure was made as assessee had made a complete disclosure of income in its revised return. Therefore, no penalty under section 271(1)(c) could be levied....

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No Default if TDS been deducted & Paid as per Certificate issue U/s. 197

M/s Kribhco Shyam Fertilizers Ltd. Vs ITO (TDS) (ITAT Luknow)

M/s Kribhco Shyam Fertilizers Ltd. Vs ITO (TDS) (ITAT Luknow) On general reading of provisions of section 197 of the Act, it authorizes the Assessing Officer to prescribe deduction of TDS at any lower rate provided the facts and circumstances justify such deduction. Clause (2) of section 197 of the Act further states that when […]...

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ITAT deletes addition under section 40A(3) for Cash payments to BSNL

Kamta Prasad Mittal Vs Dy. CIT (ITAT Lucknow)

Kamta Prasad Mittal Vs Dy. CIT (ITAT Lucknow) It is an undisputed fact that a Demand Note was issued by BSNL requiring the assessee to make payments in cash and genuinity of the payments to BSNL was never doubted by the With regard to the observation of the ld. CIT(A) that BSNL is not a […]...

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No penalty for entering PAN instead of TAN in TDS Challan on account of bona-fide mistake

ITOr Vs M/s Umatech (ITAT Lucknow)

Necessary TDS was deducted and it was deposited in the Government Treasury. All these are on record and only there is a technical error that in the challan PAN number of the assessee is mentioned instead of TAN in the relevant column on account of bona-fide mistake, for which assessee should not be penalized or punished when there is no l...

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No Penalty U/s. 271B if assessee maintained books of account

Mohd. Imtiyaz Khan Prop Vs Income Tax Officer (ITAT Lucknow)

Whether penalty under section 271B of the Act could be levied in a case where the books of account were maintained by the assessee. The Hon'ble jurisdictional High Court in that case held that where no account has been maintained, section 271B does not get attracted and instead recourse under section 271A can be taken. ...

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Registration U/s. 12AA cannot be denied if trust activities are genuine and in consonance with objects of trust or institution

Chokhraj Tulasyan Sarswati Vidya Mandir Inter College Vs. CIT (ITAT Lucknow)

Income Tax Appellate Tribunal, Lucknow bench recently held that the charitable nature of the activities of a society cannot be suspected as the same was within its objects as given in the bye-laws....

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Section 50C not applicable to cold storage building

Laxmi Ice & Cold Storage Vs Income Tax Officer (ITAT Lucknow)

Provisions of section 50C of the Act is not applicable to the cold storage building so to substitute actual sale consideration by deemed sale consideration and the order of the Assessing Officer passed under section 147/143(3) of the Act cannot be a subject matter of section 263. ...

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Registration U/s. 12AA cannot be denied for Non-submission of Form 10B at the time of registration

B.C. Sharma Memorial Society For Education & Social Welfare Vs CIT (ITAT Lucknow)

At the outset, Learned A. R. submitted that assessee is running a school and had been claiming exemption u/s 10(23C)(iii) and now the assessee had applied for registration u/s 12AA which the CIT (Exemptions) has refused relying on the provisions of section 13(1)(c) of the Act....

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Every wrong claim by assessee cannot tantamount to furnishing of wrong particulars

M/s Agrahari Builders Pvt. Ltd. Vs. Dy. C.I.T. (ITAT Lucknow)

The ITAT bench comprising of Accountant Member T. S. Kapoor and Judicial Member Partha Sarathi Chaudhury, held that penalty under Section 271(1)(c) of the Income Tax Act, 1961 would not attract when assessee makes an Ineligible Claim....

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Expense cannot be disallowed for mere absence of voucher

M/s Maheshwari Flour Mills Vs. JCIT (ITAT Lucknow)

The ITAT, Lucknow bench in M/s Maheshwari Flour Mills vs. JCIT, has held that expenses related to the fundamentals of the assessee’s business cannot be disallowed merely n ground that they were not vouched....

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Penalty cannot be imposed for Bonafide omission during return filing, surfaced during Section 148/148 Assessment

Pankaj Kumar Gupta Vs. ITO (ITAT Lucknow)

In the instant case, nothing is on record to show that there was any malafide intention on the part of the assessee to conceal the income or furnish inaccurate particulars of income and there was an omission while filing the return of income which was rectified through challan on the very date of passing the assessment order. ...

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Protective addition in hands of agents without providing opportunity of being heard is invalid

Mohammad Rajiv Hakeem Vs ITO (ITAT Lucknow)

These two appeals of the same assessee (assessed in the name of different agents) relating to the assess­ment year 2007-08 are directed against separate orders of the Commissioner (Appeals), Bareilly of the even date 27-9-2016 arising out of the order passed under section 144/147 of the Income Tax Act framed by the Income Tax Officer, Wa...

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Mechanical Approval to Assessment order by Addl CIT u/s 153D is bad in law

AAA Paper Marketing Ltd. Vs. ACIT, Central Circle- I (ITAT Lucknow)

1. It is amply clear that in the case in hand the ACIT observed that the mechanical approval had to be accorded as there is hardly any time left for any discussion or consideration much less meaningful discussion including the fact that absolutely no time available for any further inquiry or investigation because of the […]...

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Loans received in earlier Years – Addition u/s 68 Cannot be Made in Present Year

Income Tax officer 3(2) Vs shri kamal raheja (ITAT Lucknow)

ITAT held that No addition can be made u/s 68 in respect of any loan received prior to start of previous year relevant to present assessment year....

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Unexplained investment addition can be made in year of Purchase

Shri Mahesh Chandra Chaurasia Vs D.C.I.T. (ITAT Lucknow)

If period of holding is >1yr then it is LTCG & Exempt & Assessing Officer can make addition in the year of purchase if unexplained but no addition can be made in the present year/year of assessment....

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Revision cannot be done on Mere different conclusion of CIT

M/s Juhi Alloys Pvt. Ltd. Vs CIT (ITAT Lucknow)

ITAT Lucknow held in the case of M/s Juhi Alloys Pvt. Ltd. vs. CIT that since enquiry was made by the Assessing Officer on all the points on which objection had been raised by CIT in the notice issued by him u/s 263, this is not a case of lack of enquiry by the Assessing Officer or lack of application of mind by the Assessing Officer beca...

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Interest subsidy for repayment of loan acquired for acquisition of capital assets, is capital receipts

DCIT Vs M/s J.K. Cement Ltd. (ITAT Lucknow)

ITAT Lucknow held in the case DCIT vs. M/s J.K. Cement Ltd. that certain conditions are made in the subsidy scheme, which is required to be fulfilled by the corporate sector in order to avail the benefit of subsidy....

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Sec 10A – Deduction allowed to new unit being independent unit, physical demarcation with old unit not relevant

DCIT Vs M/s E-Soft Technologies Ltd. (ITAT Lucknow)

ITAT Lucknow held in the case of DCIT vs. M/s E-Soft Technologies Ltd. that as per the CBDT Circular No. 01 of 2013 and as per the Tribunal decision of the Pune Bench in the case of ACIT Vs Symantec Software India P. Ltd in ITA No. 787/PN/09, dated 30th November 2011...

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Validity of Notice via post for delivery, posted on last day of Limitation Period & Notice by affixture

ITO Vs Shri Rajesh Agarwal (ITAT Lucknow)

ITAT Lucknow held In the case of ITO vs. Shri Rajesh Agarwal that undisputedly notice of hearing under section 143(2) was issued on the last day of limitation/prescribed period for issuance of notice i.e. on 30.9.2011 at 15.19 hours by speed post....

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No addition for change in valuation of stock, where method changed in compliance of ICAI Accounting Standard

ACIT Vs M/s J. K. Synthetics Ltd. (ITAT Lucknow)

ITAT Lucknow held In the case of ACIT vs. M/s J. K. Synthetics Ltd. that CIT (A) correctly observed that there are many judgments in which, it was held that if there is change in the method of valuation of closing stock due to mandatory requirement and that change has been consistently followed by the assessee, no addition is called for....

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Section 68 cannot be applied where Assessee discharges onus to prove receipt of share capital along with premium

DCIT Vs M/s Ansh Intermediate Services Pvt. Ltd. (ITAT Lucknow)

DCIT Vs M/s Ansh Intermediate Services Pvt. Ltd. (ITAT Lucknow) The addition cannot be sustained only for the simple reason that these shareholder companies have not responded in first round of commission....

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No time limit for compliance of direction or findings of appellate forum

U.P. Forest Corporation Lucknow Vs DCIT (ITAT Lucknow)

Common appeal is raised by the assessee against the order of CIT relating to assessment year 2001-02 & 2005-06, therein CIT by virtue of Sec 263 of Income Tax Act, 1961(ACT) ordered assessing officer to make fresh assessment for said asstt year...

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Interest Income is capital receipt only if it is inextricably linked with project

ACIT Vs Z Square Shopping Mall Private Limited (ITAT Lucknow)

In the Case of ACIT VI, Kanpur vs. Z Square Shopping Mall Private Limited, ITAT held that the interest earned on FDR, Gains from investment of Mutual Fund is not inextricably linked or connected with the construction activities...

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Issue & service of notice u/s 143(2) not applicable to assessment u/s 153A

Shri Jeevan Kumar Agarwal Vs. ACIT (ITAT Lucknow)

ITAT Lucknow held In the case of Shri Jeevan Kumar Agarwal vs. ACIT that there is no specific provision in the Act requiring the assessment made under section 153A to be after issue of notice under section 143(2). In the case of Ashok Chaddha vs. CIT...

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No fresh notice u/s 143(2) required in case of change in jurisdiction officer in later proceedings

M/s Treadstone International Vs ACIT (ITAT Lucknow)

ITAT Lucknow held In the case of M/s Treadstone International vs. ACIT that we find no merit in the contention of the assessee that every time new Officer should issue a notice u/s 143(2). Whenever jurisdiction is transferred from one Officer to other Officer the subsequent officer...

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Adhoc disallowance of expenses without finding any specific defects in books of account not justified

M/s Vijay Infrastructure Limited Vs ACIT (ITAT Lucknow)

ITAT Lucknow held In the case of M/s Vijay Infrastructure Limited vs. ACIT that on the basis of general observations, without pointing out even a single specific defect in the vouchers or books of accounts, ad hoc disallowance made by Assessing Officer is not justifiable....

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No capital gain liability on assessee, where no ownership rights of property vests with him

M/s Clara Swain Hospital Vs ITO (ITAT Lucknow)

ITAT Lucknow held In the case of M/s Clara Swain Hospital vs. ITO that no capital gain liability can be imposed on the assessee where he does not own the asset and more ever he has not received any payment for such transfer....

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Reassessment u/s 150(1) due to an appeal not permissible if it’s already time barred

DCIT Vs M/s Scooters India Ltd. (ITAT Lucknow)

ITAT Lucknow held In the case of DCIT vs. M/s Scooters India Ltd. that as per the provisions of section 150(2), the provisions of sub section (1) of section 150 are not applicable if it is found that at the time when the order of CIT (A) was passed...

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Principle of consistency applies if facts and circumstances are same

JCIT Vs M/s Super House Leather Ltd. (ITAT Lucknow)

In the matter of transfer pricing adjustment, no reasons have been given by the present TPO to reject the method of Cost Plus basis adopted by the assessee and accepted by the Department in earlier year(s). ...

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Small fraction of day stayed in India cannot be counted as one complete day of stay in India

Shri Sharad Mishra Vs ITO (ITAT Lucknow)

The ITAT Lucknow in the case of Sharad Mishra vs. ITO held that the arrival of assessee in India at night cannot be treated as his stay for the complete day. Thus, the actual hours of the day stayed only could be counted as stay in India on that day. ...

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Capital gain would only be charged in the year in which stock-in-trade would be sold

ACIT Vs M/s Upper India Paper Mills Company Pvt. Ltd. (ITAT Lucknow)

These are the appeals filed by revenue against which assessee also filed cross-objection relevant to three AYs. In these cases ITAT examined various issues and held that capital gain on transfer of land held as stock-in-trade can be made only in the year in which stock-in-trade was sold and not in year in which agreement was made. ...

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Sec. 9(1)(vii) Commission for procuring order & recovering payments is not a Technical services

ACIT, Kanpur Vs M/s Northern Tannery (ITAT Lucknow)

ITAT Lucknow in the case of ACIT vs. M/s Northern Tannery held that The commission paid to the non- resident agent for procuring order and recovering payments on the behalf of assessee could not be treated ...

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If provisions of section 14A is to be invoked, disallowance is to be computed as per rule 8D

Assistant Commissioner of Income Tax, Bareilly Vs M/s.Goel Investments Ltd., (ITAT Lucknow)

In the case of ACIT vs M/s.Goel Investments Ltd., ITAT Lucknow affirmed the earlier order of ITAT in a similar case of the same assessee that once provisions of section 14A of the IT Act are to be invoked, the disallowance is to be computed as per rule 8D of the IT rules....

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Rent cannot be increased for mere increase in prices of land

M/s Resinova Chemie Ltd vs Assistant Commissioner of Income Tax, (ITAT Lucknow)

In the cited case, ITAT inter-alia held that merely because prices of land has gone up, rent cannot be increased particularly to persons covered u/s 40A(2)(b) of the I.T Act without looking into agreement in respect of rent for the earlier years and for the present year...

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Adjustment for variation in closing stock necessary for correct application of TNMM

ACIT Vs M/s Rahman Industries Ltd. (ITAT Lucknow)

ITAT Licknow in the case of ACIT vs. M/s Rahman Industries Ltd. held that- Adjustment for variation in closing stock is necessary for the correct computation of Operating cost thereby correct application of Transaction Net Margin Method (TNMM). ...

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Invocation of rule 8D without recording objective satisfaction by the Assessing Officer is not proper

UP Electronics Corporation Ltd. Vs DCIT (ITAT Lucknow)

In the case of DCIT vs. M/s Jindal Photo Limited in I.T.A. No. 814/Del/2011, the Delhi Bench of the Tribunal has also expressed similar view, in which it has been held that satisfaction of the Assessing Officer is pre-requisite to invoke the provisions of Rule 8D. ...

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AO cannot made addition for Anonymous donations treated as Income by Assessee

M/s Saraswati Educational Charitable Trust Vs ITO (ITAT Lucknow)

Respective court was of the view that section 68 has no application because the same had already been taken in income of the assessee so it no where remains undisclosed. Moreover the assessee has duly discharged its onus to prove the credit worthiness of the donor by giving the list of the same ...

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Applicability of Disallowance U/s 14A Read With Rule 8D if objective satisfaction is not recorded

M/s U. P. Power Corporation Ltd Vs DCIT (ITAT Lucknow)

These are cross appeals filed by the assessee and the revenue directed against two separate orders of Learned CIT (A) – II Lucknow both dated 07.01.2013 for A.Y. 2008 – 09 and 2009 – 10. All these appeals were heard together and are being disposed by this common order for the sake of convenience....

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Audit Fees for Prior Period not allowable unless expenses gets crystallized in the year under consideration

M/s U.P. Co-operative Processing & Cold Storage Federation Ltd Vs A.C.I.T. (ITAT Lucknow)

Since the assessee is following mercantile system of accounting, the expenses of earlier year cannot be allowed in the present year because the assessee had not been able to furnish any evidence to show that the above expenses have crystallized in the present year....

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No addition is allowed if the minor difference is only 3.24% between declaration of Assessee & Calculation made by DVO

DCIT Vs Sanjay Seth (ITAT Lucknow)

The Hon’ble Tribunal held that the DVO has estimated the cost of investment at Rs.3,58,39,100/- against the cost of investment declared by the assessee at Rs.3,47,12,678/-. Therefore, the difference is about 3.24% and for this minor difference, no addition is called for. Since the difference is very nominal, no addition is called for in...

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Sponsorship charges on study of daughter of Director allowable if made out of business exigency

M/s Motors Sales Limited, Lucknow Vs Department Of Income Tax (ITAT Lucknow)

Sponsorship charges incurred by the assessee company on study of daughter of the Director of the company abroad was not held to be of Personal Nature in view of the fact that study was sponsored by the assessee-company for its business exigency. Moreover she, being a Deputy General Manager of the assessee company, has entered into an agre...

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No depreciation allowable on ‘identifiable fixed assets if not used for Business purpose at all’

M/. Pan Parag India Ltd, Kanpur Vs Department Of Income Tax (ITAT Lucknow)

It was held that it is undisputed fact that the ‘Jorhar Unit’ of the assessee did not function at all in the present year and its assets although part of block of assets are identifiable and therefore as per provision of section 38(2) of the Act, depreciation is not allowable because assets of this unit were not used for business purp...

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In case of rejection of books of account profit ratio applied for earlier year should be considered

Shri Raghvendra Pratap Singh Vs DCIT (ITAT Lucknow)

Whether profit % can be applied on estimate basis if books of accounts are rejected, without reference to earlier year’s profit % where books were accounts were not rejected or whether the Assessing Officer is justified in Assessing the profit at a rate higher than earlier year in which profit was assessed by Assessing officer without s...

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TDS claimed by the assessee can be treated as income of the assessee if the same has been taxed on substantive basis

ACIT Vs M/s IBN Media & Software Limited (ITAT Lucknow)

Protective assessment made by the Assessing Officer in the present case cannot be sustained because substantive addition has been made in the hands of IBN-18 Broadcast and therefore, if any addition is made in the present case, it will amount to double addition. ...

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Order Should Be Passed after Affording Adequate Opportunity with clear findings

Shri Vikramendra Prasad Bhalla Vs Income Tax Officer (ITAT Lucknow)

This is an appeal filed by assessee against the order of Ld. CIT (A) dated 18/11/2013 for the assessment year 2003-2004.The grounds of assessee was that CIT (A) did not afford the assessee sufficient time and opportunity to make necessary submission and to adduce relevant details and documents...

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Sec.10(23C)(iiiad) Receipts from more than one educational institutions cannot be clubbed

Income Tax Officer. Vs M/s Chironji Lal Virendrapal Saraswati Shiksha Parishad (ITAT Lucknow)

For the purpose of limit prescribed in section 10(23C)(iiiad), Rs. One crore limit has to be considered for each institution separately and not for the assessee as a whole. This is very important to mention that as per section 10(23C)(iiiad) also, the term used is any university or other educational institution...

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Furnishing of Name, Address, PAN and Bank Statements are Sufficient compliance u/s 68

Shri Suresh Chandra (Indl.) Vs DCIT (ITAT Lucknow)

Mere cash deposit in the bank account of the creditor cannot be said that the creditor has no creditworthiness. Then by disagreeing by the other decisions the Hon’ble Tribunal held that in the present case, not even a notice was issued by the Assessing Officer to the creditors to examine and verify the case of the assessee regarding cre...

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If net consideration for transfer of capital asset of a charitable trust is utilized for acquiring new capital asset, then whole of capital gain is exempt

ACIT Vs Shri. Dwarikadhish Temple Trust (ITAT Lucknow)

Tribunal has held that in case the income is to be computed as per sub-section (1A) of section 11 of the Act, if the net consideration for transfer of capital asset of a charitable trust is utilized for acquiring new capital asset, then the whole of the capital gain is exempt....

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Deeming fiction created by virtue of sec. 50C cannot be extended to sec. 11(1A)

Asstt. CIT Vs M/s The Upper India Chamber of Commerce (ITAT Lucknow)

Assessee is a charitable society and is registered under section 12A of the Act. The question of applicability of provisions of section 50C of the Act on transfer of capital asset in the case of a charitable society was examined by the Tribunal in the case of ACIT vs. Shri. Dwarikadhish Temple Trust, Kanpur in I.T.A. No. 256 & 257/LKW/201...

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Prepayment Discount liable for TDS

DCIT Vs Kothari Food & Fragrances (ITAT Lucknow)

The pre-payment discount given by the taxpayer cannot be equated to quantity discount since quantity discount is reduction in sale price. The pre-payment discount was effectively in the nature of interest because it was in consideration of the taxpayer receiving advance payment and to compensate the buyer for making the payment in advance...

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Order of DIT cannot be challenged before Commissioner (Appeals)

Raibareilly District Co-operative Bank Ltd. Vs DCIT (ITAT Lucknow)

In the instant case, undeniably the order under section 271FA was passed by the Director of Income-tax who is equivalent in rank with the Commissioner (Appeals). Therefore, the order of the Director of Income-tax cannot be challenged or assailed by filing an appeal before an Officer,i.e., the Commissioner (Appeals), who is equivalent in r...

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Penalty u/s 271(1)(c) should not be levied on the amount which was voluntarily surrendered by the assessee during survey

ITO Vs M/s Indian & Overseas Trading Co. (ITAT Lucknow)

It is evident from the record that surrender was made during the course of survey by the assessee and furnished the return of income declaring additional income and paid the tax thereon. Nothing has been brought out on record by the Assessing Officer that the surrender was made when the assessee was cornered by the Assessing Officer. ...

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Mere Change in Allotted flat without determining any consideration is not transfer

ITO Vs Smt. Tripta Shahani (ITAT Lucknow)

Merely change in the flat without determining any consideration for the old flat cancelled and new flat transferred, it cannot be said that the old flat was sold and new flat was purchased on the date of change....

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S. 68 Addition cannot be made in the absence of books on the basis of mere bank statement

Income Tax Officer Vs Shri. Kamal Kumar Mishra (ITAT Lucknow)

In the instant case, it is an undisputed fact that the assessee has not maintained any books of account and whatever credit entries are found by the Assessing Officer, it was from the bank accounts of the assessee in which deposits were made at different point of time....

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Filling Recall Application without consent of client is a Professional Misconduct, ITAT recommends ICAI to take action against erring CA

M/s Omkar Nagreeya Sahkari Bank Ltd. Vs Dy. C.I.T.-I (ITAT Lucknow)

No professional has any right to invoke the judicial machinery for his own interest without any reasons. If he does so it would amount to professional misconduct on the part of the professional. Moreover, to dispute the proceedings of the court...

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Jurisdiction of ITAT depends upon location of office of AO passing the order

Assistant Commissioner of Income-tax Vs Smt. Lata Jain (ITAT Lucknow)

Undisputedly the office of the Assessing Officer who passed the assessment orders is located in Delhi, over which the Delhi Benches of the Tribunal has jurisdiction. The order under section 127 of the Act was passed by the ld. Commissioner of Income-tax on 12.8.2011 w.e.f. 23.8.2011, which was passed after passing the assessment order and...

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Whether assessee’s failure to get its accounts audited on ground that its entire income was exempt constitutes a reasonable cause?

Cane Development Union Vs Asstt. Commissioner of Income-tax (ITAT Lucknow)

Having been served with a legal notice for the levy of penalty u/s. 271B, it was incumbent on the assessee to cause to comply with the provision, at least for the second year and, in any case, seek legal opinion in its respect. Rather, it could have, on its own, requested the AO not levy the penalty for that year (i.e., A.Y. 2006-07), exp...

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Deduction u/s. 80-IB(10) not available for housing complexes constructed after 31-3-2008

Fortuna Foundation Engineer & Consultants (P.) Ltd. Vs Assistant Commissioner of Income-tax-IV, Lucknow (ITAT Lucknow)

Since the housing project was completed after 31.3.2008, the assessee has not fulfilled the second requisite condition for claiming deduction under section 80IB(10) of the Act and therefore the assessee is not entitled for deduction under section 80IB(10) of the Act....

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NPA norms of RBI are not binding on tax authorities

Hamirpur District Co-operative Bank Ltd. Vs Deputy Commissioner of Income-tax (ITAT Lucknow)

Accrual (or otherwise) of an income (or expenditure) is matter of fact, to be decided separately for each case, on the basis of the assessment of the obtaining facts and circumstances. The same cannot be stated as an accounting policy - which by its very nature is to be applied uniformly,...

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Addition u/s. 68 cannot be deleted for mere payment if not supported by creditor’s confirmation

Deputy Commissioner of Income-tax Vs Verma Roadways (ITAT Lucknow)

Coming to the facts of the case, the assessee was afforded sufficient opportunities to furnish confirmations in respect of the impugned credits by the Assessing Officer (refer page 2 of the assessment order). A final show-cause notice was issued by him on 22/03/2006, stating the said fact, and by way of allowing a last opportunity to the ...

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Registration cannot be denied to muslim Trust giving Islamic education

Malik Hasmullah Islamic Educational and Welfare Society Vs Commissioner of Income-tax, Faizabad (ITAT Lucknow)

The learned CIT continued to observe that section 13(1)(b) of the Act provides that in the case of a trust or charitable institution created or established for the benefit of a particular religious community or caste, no income will be excluded from the total income. It was, further, observed by the learned CIT that provisions of section ...

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ITAT cannot ask for rejection of books if A.O. made addition on the basis of his limited review

Pragati Engineering Corporation Vs Income-tax Officer, Raebareli (ITAT Lucknow)

In the instant case, the Judicial Member has not stated anywhere that the profit margin disclosed by the assessee was rejected by the Assessing Officer arbitrarily and the addition made by the Assessing Officer is excessive and arbitrary. The Assessing Officer has discretion to either reject the books of account and estimate gross profit ...

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S. 68 Once Assessee discharge initial burden of proving creditworthiness of parties onus shift on revenue to prove otherwise

Vishnu Jaiswal Vs Commissioner of Income-tax (Appeals) (ITAT Lucknow)

The provisions of section 68 should be read in conjunction with section 106 of the Evidence Act. In the peculiar facts and circumstances of the case, the assessee has discharged the initial burden of proving identity, genuineness of transactions and also creditworthiness of the three creditors by producing their respective bank accounts. ...

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Mere comment that there was a fake gift racket do not make gift not-genuine

Jai Narain Upadhyay Vs Assistant Commissioner of Income-tax-II (ITAT Lucknow)

It is not a case where the Assessing Officer has brought any material on record to indicate that the revenue was aware of the non-genuineness of the gift received by the assessee. Except vague observations that there was a fake gift racket nothing specific has been pointed out in the case of the assessee. In fact action of the Assessing O...

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A.O. cannot ask Assessee to prove source of source if he do not have any material to prove non-genuineness

Dwarikadhish Sugar Industries Vs Income-tax Officer (ITAT Lucknow)

The fact that the Assessing Officer had accepted part of the loans indicates that the Assessing Officer not only accepted the identity and genuineness of the creditors but also the creditworthiness of the creditors. However, he chose to disallow a part of the loan without bringing on record any material to show that the assessee had any o...

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Withdrawal of circular dealing with income arising from business connection in India is prospective in nature

Sanjiv Gupta Vs. DCIT (ITAT Lucknow)

Lucknow Income-tax Appellate Tribunal in the case of Sanjiv Gupta v. DCIT , held that Circular No. 7 of 2009 dated 22 October, 2009 withdrawing the Circular No. 23 of 1969 dated 23 July, 1969 would be effective only prospectively from 22 October, 2009. The Circulars are briefly explained in the following table. ...

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Expenditure on improvement of Capital Expenditure needs to be supported by evidence

Ramendra Vikram Singh Vs ITO (ITAT Lucknow)

We have-considered the rival submissions and perused the material on record. So far as facts are concerned, the undisputed facts are that assessees inherited in the co-ownership a Bunglow No.2, Faizabad Road, Opposite to IT College, Lucknow. This was sold by these assessees vide sale deed dated 20.11.2003. Apparent consideration is declar...

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Gifts- Genuineness of NRE gifts

Deputy Commissioner of Income Tax Vs. Alok Gautam (ITAT Lucknow)

Assessee having failed to prove the identity of the non-resident donors who are said to have gifted substantial amounts to him from their NRE accounts by producing them personally or copies of their passports and also failed to prove the creditworthiness of the said donors, the alleged gifts cannot be treated as genuine, more so since the...

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Where fair market value of the capital asset under transfer is less than the valuation as per Stamp Value Act

Mohd Shoib Vs DCIT (ITAT Lucknow)

Where fair market value of the capital asset under transfer is less than the valuation as per SVA and such valuation as per SVA becomes final under Stamp Duty Act then the assessee is left with no choice and has to pay tax on the notional sale consideration on the valuation as per SVA....

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Liability can not be added to income just because they are old or not proved genuine

DCIT Vs. Allied Leather Finishers Pvt. Ltd. (ITAT Lucknow 'B' Bench)

Regarding the addition made u/s 41(1), we are of the view that the Assessing Officer has incorrectly invoked this provision. There is neither any remission nor cessation of the liability. The Assessing Officer has simply added all the credits appearing in the balance sheet which could not be hit by Section 41(1). ...

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Recognition can not be denied U/s. 80G (5) only on the ground that the particulars of donors are not provided by Institution or fund

Kalyanam Karoti Vs CIT (ITAT Lucknow 'A' Bench)

We have considered the rival submissions and perused the material on record. In our considered view , the reasons advanced by the learned CIT for refusing to grant continuation of recognition u/s 80G(5) are superfluous and do not stand to legal scrutiny within the meaning of section 80G(5). ...

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Payment made in cash for purchase from local producers either directly or through their agents and disallowance of expense u/s. 40A(3)

DCIT Vs Allied Leather Finishers Pvt. Ltd. (ITAT Lucknow 'B' Bench)

So far as addition u/s 40A(3) is concerned, the undisputed facts are that assessee has purchased raw hides/skins for the purposes of manufacturing leather and leather products from local producers either directly or through their agents. Even though the Assessing Officer issued letters to various producers and some of these have come bac...

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For proving a gift to be genuine Assessee need to prove existence of natural love and affection

DCIT Vs Alok Gautam (ITAT Lucknow 'A' Bench)

he letter-cum-certific ate issued by the donors were undated, letter given by Shri Habib-ur Rehman was signed by his wife, the details about the bank account were either not filled in the letters sent by the donors or the numbers of bank account given were incorrect, signatures of Smt Badrun-nisan Hanfi as given on the letter and -as sign...

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Levy of penalty for declaration of in-genuine gift in revised return u/s. 139(5) of IT Act

ACIT Vs Deepak Agarwal (ITAT Lucknow)

The undisputed fact is that return filed by the assessee on 31.7.2001 did not contain any information with respect to the amount of gifts received by the assessee in the name of his children. That return was processed under section 143(1) on 1.2.2002 and notice under section 143(2) was also issued on 14.2.2002 and compliance was required ...

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No denial of Local authority status for non-election of members of assessee-Mandi Parishad

Rajya Krishi Utpadan Mandi Parishad Vs ITO (ITAT Lucknow 'A' Bench)

15. We have heard both the parties at length and carefully gone through the materials available on record. In the instant case, the controversy to be resolved is whether assessee was a Local Authority for the year under consideration and as such was eligible for exemption of income u/s. 10(20) of the Act or not. Section 10 of the Act deal...

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Notice u/s. 148(1) of IT Act when a valid return was pending assessment

Kailash Auto Finance Ltd. Vs ACIT (ITAT Lucknow 'A' Bench)

16. The term 'pending' means 'undecided1 i.e something which is not concluded. An action is considered as pending from the time of commencement of the proceedings. Thus, a legal proceeding is pending as soon as commenced and until it is concluded. As per Advanced Law Lexicon, third Edition of 2005, page 3521/3522, following are the defini...

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Love and affection can be reflected by frequent acquaintance, mutual exchange of gifts, mutual help to each other

Smt. Sonu Agarwal Vs ITO (ITAT Lucknow)

19. We have considered the rival submissions and perused the material on record. In our considered view inferences drawn by the authorities below are not sustainable in law. The grounds on which the A.O. has added the amount of gift as assessee's income are summarized by us in para 12. We do not agree that the persons showing income of Rs...

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Onus for proving gifts as genuine is on Assessee but same is not fixed : ITAT Lucknow

Smt. Sonu Agarwal Vs ITO (ITAT Lucknow)

19. We have considered the rival submissions and perused the material on record. In our considered view inferences drawn by the authorities below are not sustainable in law. The grounds on which the A.O. has added the amount of gift as assessee's income are summarized by us in para 12. We do not agree that the persons showing income of Rs...

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Imposition of penalty on basis of findings given in assessment proceedings

Ashok Grih Udyog Kendra (P.) Ltd. Vs ACIT (ITAT Lucknow)

7. We have carefully considered the rival submissions and have also perused the materials available on record. The decisions cited at the time of hearing of appeal were duly considered. It is apparent from the record that the assessee company had debited a sum of Rs.2,37,370/ - under the head `travelling expenses' and claimed the above ex...

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Condition precedent for raising presumption under section 132(4A) read with section 292C of IT Act against a person searched

Mudit Verma Vs. ACIT (ITAT Lucknow)

(iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped...

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Prerequisites of a genuine gift transaction

Krishna Mohan Agrawal Vs ITO (ITAT Lucknow)

5. We have considered the rival submissions and the material on record. In our considered view, the gifts so received by the assessee or his grandsons could not be said to be genuine. The reasons are that in all these cases, the donors are persons of low income group and do not have any capital or asset. There is no evidence on record to ...

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November 2020