Cheryl J. Patel vs. ACIT (Bombay High Court)
S. 254(1): The ITAT should give
independent reasons showing consideration of the submissions made on behalf of
the assessee. An appellate order which affirms the order of the lower authority
need not be a very detailed order. Nevertheless, there should be some
indication in the order passed by the appellate authority of due application of
mind to the contentions raised by the asseseee in the context of findings of
the lower authority which were the subject matter of the challenge before it
We find that while discussing
various issues, the Tribunal has not given any independent reasons showing
consideration of the submissions made on behalf of the assessee. We are
conscious of the fact that an appellate order which affirms the order of the
lower authority need not be a very detailed order, nevertheless, there should
be some indication in the order passed by the appellate authority, of due
application of mind to the contentions raised by the asseseee in the context of
findings of the lower authority which were the subject matter of the challenge
before it. In view of above, the interest of justice would be served if the
impugned order is quashed and set aside and the appeals are restored to the
Tribunal for fresh consideration
ACIT vs. Celerity Power LLP (ITAT Mumbai)
S. 47(xiiib) r.w.s 47A(4): The
conversion of a company into a LLP constitutes a "transfer". If the
conditions of s. 47(xiiib) are not satisfied, the transaction is chargeable to
'capital gains‘ u/s 45 (Texspin Engg 263 ITR 345 (Bom) distinguished). If the
assets and liabilities of the company are vested in the LLP at 'book values‘
(cost), there is in fact no capital gain. The argument that u/s 58(4) of the
LLP Act, the LLP is entitled to carry forward the accumulated losses &
unabsorbed depreciation of the company, notwithstanding non-compliance with s.
47(xiiib) is not acceptable
We find from a perusal of the
‘memorandum‘ explaining the purpose and intent behind the enactment of
sub-section (xiiiib) to Sec. 47, that prior to its insertion, the ‘transfer‘ of
assets on conversion of a company into a LLP attracted levy of “capital gains”
tax. The legislature in all its wisdom had vide the Finance Act, 2010 made Sec.
47(xiiib) available on the statute, with the purpose that the transfer of
assets on conversion of a company into a LLP in accordance with the Limited
Liability Partnership Act, 2008, subject to fulfilment of the conditions
contemplated therein, shall not be regarded as a ‘transfer‘ for the purposes of
Sec. 45 of the Act. In so far, the reliance placed by the ld. A.R on the
judgment of the Hon‘ble High Court of Bombay in the case of CIT Vs. Texspin
Engg. & Mfg. Works (2003) 263 ITR 345 (Bom) is concerned, the same in our
considered view is distinguishable on facts
ITO vs. Ashok Jain (ITAT Surat)
S. 148/ 151: If the AO issues the
notice for reopening the assessment before obtaining the sanction of the CIT,
the reopening is void ab initio. The fact that the sanction was given just one
day after the issue of notice makes no difference
No doubt in the present case, the
ld.AO has applied for such approval which was granted on 29.3.2017, but before
grant of approval, the ld.AO has already issued notice on 28.3.2014 which is
without any jurisdiction. He can issue notice only after getting approval.
Thus, the ld.CIT(A) has rightly quashed the assessment because the very
foundation for issuance of notice under section 148 is the approval from the
competent authority, i.e. Commissioner of Income Tax, and in the absence of such,
such notice is void ab initio
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