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
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 even after filing of the first appeal.
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), explaining that the non-audit of its accounts u/s. 44AB stood caused only due to its ignorance of law,
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,
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 11 and 12 cannot be extended to an institution established for the benefit of a particular religious community or caste.
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 or to consider the books and may make specific addition by considering as to whether the expenditure claimed is reasonable or not.
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.
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. Entry in the pass book of a third party can be taken as a primary evidence in proof of the fact that loan was advanced by third party. Thus, the initial onus shifts onto the revenue to prove that the creditors lack creditworthiness and to come to such conclusion, the assessee cannot be asked to produce any evidence which is within the personal knowledge of the third party. In the instant case, the Assessing Officer did not examine the parties and proceeded on the assumption that creditors would not have saved any money to advance the loan. In the circumstances of the case, the view taken by the Accountant Member is in accordance with law. In other words, it is not a fit case to make addition under section 68.
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 Officer on the ground that assessee has concealed income is contradictory in terms for the simple reason that the Investigation Wing appears to have passed on the information, in the year 2002, to the Assessing Officer that a sum of Rs. 5 lakhs was taken by assessee in the form of a gift from ‘B’, the record indicates a gift of Rs. 1 lakh only.
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 assessee to substantiate its case, for 24/03/2006, and which (notice) again remained un-responded, even up to the date of passing of the assessment order, i.e., 29/03/2006 (refer page 3 of the assessment order).
