CIT vs. Deepak Kumar Agarwal (Bombay High Court)
S. 153A: Argument of
the Dept that the law laid down in Continental Warehousing/ All Cargo Global
Logistics 374 ITR 645 (Bom) that assessment u/s 153A can be made only on the
basis of incriminating material found in the search and no other issue can be
taken is per incuriam in view of Rajesh Jhaveri Stock Brokers 291 ITR 500 (SC)
is not correct. Bhola Shankar Cold Storage 270 ITR 487 (Cal) distinguished The argument of Mr. Ahuja is that the view taken by the Tribunal based on its Special Bench decision in the case of All Cargo Global Logistics Ltd. v. Deputy Commissioner of Incometax, Central Circle44, [2012] 23 Taxman.Com 103 (Mum.) (SB) cannot be said to be correct. Mr. Ahuja’s argument is that though the assessee is heavily relying upon a Division Bench judgment of this Court in the case of Commissioner of IncomeTax v. (1) Continental Warehousing Corporation (Nhava Sheva) Ltd. and (2) All Cargo Global Logistics Ltd. Reported in [2015] 374 ITR 645 (Bom), still, the questions proposed by the Revenue in these Appeals ought to be entertained. These are substantial questions of law and the Division Bench judgment in Continental Warehousing Corporation and All Cargo Global Logistics (supra) is rendered in ignorance of a judgment of the Hon’ble Supreme Court reported in [2007] 291 ITR 500 (SC) (Assistant Commissioner of IncomeTax vs. Rajesh Jhaveri Stock Brokers Private Limited).
PCIT vs. Delhi Airport Metro Express Pvt. Ltd (Delhi
High Court)
S. 263 Revision: For
the purposes of exercising jurisdiction u/s 263, the conclusion of the CIT that
the order of the AO is erroneous and prejudicial to the interests of the
Revenue has to be preceded by some minimal inquiry. If the PCIT is of the view
that the AO did not undertake any inquiry, it becomes incumbent on the PCIT to
conduct such inquiry. The second option available u/s 263 (1) of sending the
entire matter back to the AO for a fresh assessment can be exercised by the
PCIT only after he undertakes an inquiry himself and not otherwise For the purposes of exercising jurisdiction under Section 263 of the Act, the conclusion that the order of the AO is erroneous and prejudicial to the interests of the Revenue has to be preceded by some minimal inquiry. In fact, if the PCIT is of the view that the AO did not undertake any inquiry, it becomes incumbent on the PCIT to conduct such inquiry. All that PCIT has done in the impugned order is to refer to the Circular of the CBDT and conclude that “in the case of the Assessee company, the AO was duty bound to calculate and allow depreciation on the BOT in conformity of the CBDT Circular 9/2014 but the AO failed to do so. Therefore, the order of the AO is erroneous insofar as prejudicial to the interest of revenue”
CIT vs. Shreedhar Sewa Trust (Allahabad High Court)
S. 12AA: At the time
of registration of a charitable institution u/s 12AA, the CIT is not required
to look into the activities, where such activities have not or are in the
process of its initiation. The registration cannot be refused on the ground
that the trust has not yet commenced the charitable or religious activity. At
this stage, only the genuineness of the objects has to be tested and not the
activities, unless such activities have commenced The preponderance of the judicial opinion of all the High Courts including this court is that at the time of registration under section 12AA of the Income-tax Act, which is necessary for claiming exemption under sections 11 and 12 of the Act, the Commissioner of Income-tax is not required to look into the activities, where such activities have not or are in the process of its initiation. Where a trust, set up to achieve its objects of establishing educational institution, is in the process of establishing such institutions, and receives donations, the registration under section 12AA cannot be refused, on the ground that the trust has not yet commenced the charitable or religious activity. Any enquiry of the nature would amount to putting the cart before the horse. At this stage, only the genuineness of the objects has to be tested and not the activities, which have not commenced. The enquiry of the Commissioner of Income-tax at such preliminary stage should be restricted to the genuineness of the objects and not the activities unless such activities have commenced. The trust or society cannot claim exemption, unless it is registered under section 12AA of the Act and thus at that such initial stage the test of the genuineness of the activity cannot be a ground on which the registration may be refused
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