Monday 14 August 2017

271AAA penalty quashed for AO’s failure to seek manner of earning ‘undisclosed income’ ; Upholds wealth-tax assessment on amalgamating company




HC:Quashes penalty u/s 271AAA for AO’s failure to seek manner of earning ‘undisclosed income’
Gujarat HC upholds ITAT's order, quashes penalty u/s 271AAA [which is levied in
search cases] for AO’s failure to seek explanation from assessee to substantiate the method of earning ‘undisclosed income’; Search u/s.132 was conducted in assessee's premises pursuant to which undisclosed income was revealed and accordingly AO invoked sec. 271AAA penalty; CIT(A) & ITAT relied on Gujarat HC case of Mahendra C Shah and deleted the penalty as the recording of statement u/s 132(4) was sans specifying manner of deriving such income; Notes that assessee filed disclosure statement u/s 132(4) after search offering undisclosed income, paid applicable taxes with interest and further disclosed such income in the return filed u/s 153A; Holds that Sec 271AAA(2) mandates a pre-condition for authority recording the statement of assessee u/s 132(4) to elicit a response from assessee to trigger assessee's responsibility to substantiate the manner of deriving the impugned income; Notes, AO didn’t question the assessee to state the manner of earning income thus holds that “When the base requirement itself fails, the question of denying the benefit of no penalty would not arise”.
[TS-329-HC-2017(GUJ)]
HC : Upholds wealth-tax assessment on amalgamating company; Notes assessment-completion before amalgamation effective-date
Madras HC affirms ITAT order imposing wealth-tax on assets held by assessee under the Wealth Tax Act and confirms assessment despite assessee co. amalgamated with another co.; For AY 1990-91, assessee claimed that wealth-tax assessment made after its amalgamation with another company was invalid; Rejecting assessee’s stand, HC notes that factum of amalgamation was disclosed after the return was filed and assessment was related to the period prior to the date of amalgamation, furthermore amalgamation was effected before the date of completion of assessment; Opines that as per scheme of amalgamation “all actions and legal proceedings by or against the transferor company pending on the completion of procedure date shall be continued and be enforced or against the transferee company as the case may be”
[TS-278-HC-2017(MAD)]
HC : Confirms penalty; Trust's reliance on SC's Surat Art case, sheer excuse to avoid tax-liability
Bombay HC upholds ITAT order for AY 1983-84, confirms penalty levy u/s. 273(2)(a) and 140A(A)(3) by assessee-trust (formed in 1941 and involved in publishing newspaper) for declaring ‘NIL’ estimate of advance tax and not paying self-assessment tax while filing return; Prior to AY 1962-63, assessee’s income was exempt under IT Act 1922, but subsequently under the IT Act 1961 (nearly for forty years), it was held liable for payment of tax as assessee was not falling in the category of ‘Charitable Trust’, also takes note of ITAT order in assessee’s own case for AYs 1962-63 to 1970-71, wherein Sec. 11 exemption was denied; Noting that despite past orders, assessee filed return claiming exemption u/s 11, HC remarks that “In the wake of this factual backdrop, the act of the assessee/Trust in not paying self assessment tax by returning its income and filing “NIL” estimate of the advance tax cannot be said or termed as bonafide act.”; Though Revenue did not impose any penalty in past years, HC clarifies that this cannot be a ground to conclude that assessee had ‘bonafide belief’ that its income was tax exempt; Further HC holds that assessee’s reliance on SC ruling in Surat Art Silk Cloth Manufacturers Association (which laid down test to determine whether the Trust is created for charitable purpose) “appears to be a lame excuse in order to avoid the tax liability and depriving the Revenue its due share in the taxable income”

[TS-322-HC-2017(BOM)]

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