The issue as to whether there was concealment of particulars of income on the part of the assessee so as to attract penalty under section 271(1)(c) depends on the acceptability of the explanation of the assessee that the mistake in this regard was inadvertent due to his ignorance of Indian Income-tax law, hence there was bona fide reason for the same.
Hon’ble Bombay High Court in the case of Prashant S Joshi (supra) has also noted the omission of section 47(ii) of the Act and insertion of section 45(4) of the Act with effect from 1.4.1988. Considering the entirety of the legal position, it has been affirmed by the Hon’ble High Court that amounts received by the partner on his retirement, are exempt from capital gains tax.
The Sick Industrial Companies (Special Provisions) Act, 1985 is a Central Act having legal sanctity. It has got overriding effect on any other provisions of any other Act except the provisions of FERA 1973 and Urban Land (Ceiling Act & Regulation) Act, 1976. Therefore, the directions of the BIFR have to be honoured and failure of such directions will bring legal disharmony.
Section 50C of the Act is a deeming provision and ostensibly involves creation of an additional tax liability on the assessee and, therefore, notwithstanding the presence of the expression ‘may’ in section 50C(2)(a), the Assessing Officer in the instant case (where assessee had claimed in his return itself that stamp duty values exceeds FMV) ought to have referred the matter to the Valuation Officer for ascertaining the value of the capital asset in question.
It is a fact that the inaccuracy involved in instant case is of Rs. 124.04 lakhs which works out to nearly 6 per cent of the profits and the assessee describes the same as trivial and ignorable. Stand of revenue in this regard is that the Assessing Officer has only to establish the inaccuracy in the books of account maintained by the assessee and the triviality or otherwise is not the issue. The provisions are clear that in principle the Assessing Officer can assume jurisdiction under section 145 either for the reasoning of the ‘incompleteness of the books or for the reasoning of the inaccuracy of the same.
Hon’ble Supreme Court in the case of Para Laminates (P.) Ltd.’s held that the Tribunal is entitled to exercise all incidental and ancillary powers which are reasonably necessary for performing the adjudicative functions. Applying the aforesaid principles, it clearly follows that it was obligatory on the part of the I.T. authority to effect service of notice of hearing on the assessee since the service could not be effected by post at the address given by the revenue in the memorandum of appeal.
The Hon’ble Gujarat High Court in the case of N.N. Desai Charitable Trust (supra) while deliberating upon the scope of enquiry for the purpose of granting of recognition u/s.80G of the Act opined that it does not envisage the commissioner to act as an assessing authority because the actual assessment of institution would not ultimately effect the claim for deduction u/s. 80G qua the donors.
In the case of CIT Vs. SPL’s Siddharth Ltd. (Supra), before the Hon’ble Delhi High Court, the facts were that notice issued by the A.O u/s. 147 r.w.s 148 of the Act for re-opening the assessment for the A.Y. 2002-03 was set aside by the Tribunal on the ground that the requisite approval of Addl. Commissioner of Income Tax, which is mandatorily required, was not taken.
Requirement of section 54EC to the effect that investment in specified assets is to be made within a period of six months from the date of transfer, was put to some clarification by the CBDT in Circular No 791 (supra). The question arose before the CBDT regarding exemption of a long term capital asset which had arisen on conversion of a capital asset into stock-in-trade.
There is no disagreement between the taxpayer and the AO that (a) in terms of the license agreement, the taxpayer has granted only right to use of a copyrighted article and not for the use of a copyright and (b) the copyright continue to remain with the CGI. The Special Bench of the Delhi Tribunal in the case of Motorola Inc has observed that if the payment was for a copyright, it was liable to be classified as ‘royalty’ under the Act as well as under the tax treaty.
