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Explanation to section 73 does not operate in respect of a company whose gross total income consists mainly of income which is chargeable under the heads of ‘interest on securities’, ‘income from house property’, ‘capital gains’ and ‘income from other sources’. In the instant case, the income from other sources was the only chargeable income, as the assessee had suffered a business loss otherwise. Therefore, Explanation to section 73 would not apply in the instant case. Further the Judgment of the Bombay High Court in the case of CIT v. Darshan Securities (P.) Ltd. [2012] 206 Taxman 68/18 taxmann.com 142 supports the assessee’s case.
Indisputably, certain discrepancies crept in while furnishing the information requisitioned by the AO from the assessee in respect of the aforesaid amount of Rs. 10 lacs from M/s Melco Sales Pvt. Ltd. and Rs. 5 lacs from M/s Poonam Corporation Ltd. towards share application money vis-à-vis information obtained by the AO from the aforesaid two companies u/s 133(6) of the Act.
It was the submission by the ld. AR that the show cause notice issued u/s 263 of the IT Act on 23.01.2012 had not mentioned which order was erroneous nor had he mentioned the error in the assessment order. It was the submission that the show cause notice did not show as to how and what was the issue in which order the said issue arose which was erroneous and prejudicial to the interest of the revenue.
Test of residence will be determined on the basis of number of days of stay in India and not by the interpretation adopted by the lower authorities in this case. It has not been disputed by the revenue that the number of days of the stay of assessee in India are less than 182 days. In these facts and circumstances the assessee’s arguments on this issue deserve to be upheld.
The assessee-company initially filed u/s 139(1), a return supported by regular accounts, and showing substantial book profit and offering MAT. However thereafter its accounts came to be inspected by the Registrar of Companies who gave certain directions to modify its Annual Accounts. On the basis of those directions the assessee revised its profit and loss account and balance sheet which resulted in its income being negative. The corrected accounts were placed before the shareholders for their approval. Note no.7 of the Notes attached and forming part of the accounts was approved by the shareholders in the annual general meeting. The assessee however filed the revised return based on the revised accounts, showing a book loss, beyond the time limit prescribed in section 139(5).
It is a well-known fact that the Assessing Officers (AOs) in many cases make high-pitched assessments and raise huge uncalled for demands against the assessee, as a result thereof. It is also a well-known fact that after raising such uncalled for and unjustified high demands, the Revenue authorities take recourse to coercive measures for the recovery of such demands in a highly arbitrary and hasty manner. In such a situation,
(i) it will not be mandatory for agents of non-residents, within the meaning of section 160(1) (i) of the Income –tax Act, if his or its total income exceeds ten lakh rupees, to electronically furnish the return of income of non-residents for assessment year 2012-13; (ii) it will not be mandatory for ‘private discretionary trusts’, if its total income exceeds ten lakh rupees, to electronically furnish the return of income for assessment year 2012-13.
Very often the tax payer realises that he omitted to claim certain deductions, only long after he had filed the return. The circumstances would be such that the tax payer would not be even eligible to file a valid revised return.
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.
A section of Media has reported that the Central Board of Direct Taxes has extended ‘due date’ of filing of returns to 31st August, 2012 in respect of only those returns which were to be e-filed by 31st July, 2012. It is clarified that the notification issued by the Board on 31st July, 2012 has extended the ‘due date’ of filing of all returns for the Assessment Year 2012-13 which were due to be filed by 31st July, 2012 to 31st August, 2012.
