Included in this update
a) P&H high court jurisdiction importance (TDS & income tax matters) Artemis Hospital Gurgaonb) P&H high court search & seizure: disclosed asset seizure release petition prematue held (rev fav)
c) P&H high court warrant importance for search block assessment
a) P&H high court jurisdiction importance (TDS & income tax matters) Artemis Hospital Gurgaonb) P&H high court search & seizure: disclosed asset seizure release petition prematue held (rev fav)
c) P&H high court warrant importance for search block assessment
d) Gujarat high court quashing search warrant u/s 132 based on non objective foundation
e) Gujarat high court cash credit rev fav (opening balance in genuine)
f) Share capital basic and inherent Capital receipt nature highlighted by Gujarat high court
g) Gujarat high court unexplained cash credit cannot give rise to 269SS cash loan penalty
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT
CHANDIGARH
CWP No.12000 of 2012
Date of Decision: 16.01.2013 Artemis
Medicare Services Limited The issue in the present writ petition is in respect
of
jurisdiction exercised by the Delhi Circle and
the Gurgaon Circle
in
respect of Tax Deducted at Source
return for the Financial Year 2009-10. During the course of arguments, Ms.
Dhugga, learned
counsel for the respondents has stated
that the assessment order by the Gurgaon
Circle in respect of Financial Year 2009-10 was
passed without any knowledge of the petitioner being assessed by the Delhi Circle. Thus,
the assessment made by Gurgaon
Circle be deemed to be quashed as framed by the
Assessing Officer, Gurgaon Circle.
Ms. Dhugga further states that the Assessing Officer, Delhi Circle shall assess
the petitioner with NIL income for the Financial Years 2010-11 and 2011-12 in
view of the fact that the petitioner has filed returns before the Gurgaon
Circle Since there was dispute regarding jurisdiction in respect of the
Financial Year 2009-10, we permit the Assessing Officer, Gurgaon Circle to
transmit the record of survey to the Assessing Officer, Delhi Circle for
appropriate action in accordance with law
IN THE HIGH COURT OF PUNJAB &
HARYANA AT CHANDIGARH
CWP No. 11021 of 2012
Date of decision : January 14, 2012
Jai Mata Construction Co.
............Petitioner Learned counsel for the petitioner has vehemently argued
that the sum of Rs.15,00,000/- is part of the disclosed asset of the petitioner
and, therefore, the said amount could not be seized by the revenue in terms of Section
132-A(1)(c) of the Income Tax Act, 1961. Learned counsel for the
petitioner vehemently argued that seizure of
the said amount is beyond the jurisdiction of the revenue. Section 132-A(1)(c),
is source of power to seize the said amount. The aforesaid provision provides
that any asset which has not been or would not have been disclosed for the
purpose of the Act can be taken in possession by the requisitioning Officer.
The Director of Income Tax, Investigation, Punjab
as an authorised officer has requisitioned and
deposited the said amount in the account of
Commissioner of Income Tax, Ludhiana.
Thus, such order is in terms of Section 132-A(1)(c) of the Act. The amount has
been seized in the terms of the statutory provisions. The fact whether such
asset has been disclosed for the purpose of the Act or not is a question of
fact which is yet to be examined by the Assessing Officer. Therefore, we do not
find any ground to entertain the present writ petition and direct the respondents to release the seized asset of the
petitioner at this
stage. The question whether the amount seized
by the revenue is declared asses or not is a question of fact. Such question of
fact can be determined by the Assessing Officer during the course of assessment
proceedings only. Learned counsel for the petitioner has referred to the judgment
of the Hon'ble Supreme Court reported in Commissioner
of Income Tax vs Vindhya Metal Corporation and others, (1997) 224 ITR 614 to
contend that the seized asset should be released in favour of the petitioner. However,
we find that such judgment has no application to the facts of the present case.
In the aforesaid case the amount of Rs.4,63,000/- was seized by the Income Tax
Department believing it to be a stolen property.
However, during the course of investigation, it
was found that it was not a stolen property. Since in the aforesaid case, a
finding of fact was recorded that the amount is not a stolen property,
therefore, the amount was ordered to be released by the Allahabad High Court,
which order was affirmed by the Hon'ble Supreme Court. But in the present case,
the basic question whether the asset is a disclosed asset is yet to be examined
by an authority under the Act. Therefore, no such direction as sought by the
petitioner can be granted at this stage.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. ITA.No.551 of 2010
Date of Decision:05.2.2013 Ram Singh The admitted facts which
emerge from the record are that there is no authorization of search or search
warrants under Sections 132 (i) of the Act in respect of these assessees. No
doubt, while searching the premises of their father Lal Singh, some documents
and other material which were not belonging to the assessees were seized and on
that basis, there could be block assessment. However, in such
a situation when there was no authorization in
respect of these
assessees, it is the provisions of Section 158
BD of the Act which would be attracted and not the provisions of 158 BC. The
Tribunal has rightly pointed out that jurisdiction to assess the undisclosed
income for the block period under Chapter XIV-B vests in the Assessing Officer
by virtue of the provisions of
Section 158BA in a case where a search under
Section 132 is initiated after 30.6.1995. Again, in term of Section 158 BC, a
notice under that Section can be issued where any search has been conducted
under Section 132 of the Act. However, assessment is to be carried out in respect
of undisclosed income of other person i.e. a person in whose case, there was no
search made under Section 132 of the Act, the provisions of Section 158 BD are
to be invoked. In the present case, however, the assessment against the assessees
was not under Section 158 BD of the Act but they were issued notices under
Section 158 BC and the assessment order was passed under that provisions. In
the absence of any search warrants in respect of these assessees under Section
132 (1) of the Act, assessment could not have been under Section 158 BC of the
Act. Such an assessment without authorization is void ab-initio.
IN THE HIGH COURT
OF GUJARAT AT AHMEDABAD DIPEN
LALJIBHAI MANDALIA Date : 11/02/2013 The petitioners have
challenged the validity of
search and seizure operations initiated against
them by Revenue in connection with information
received from the security personnel of Ahmedabad
Airport on 25.7.2012. It appears that some of the
members of a group of family were travelling to
Chennai on a flight from Ahmedabad. They were
found to be carrying sizeable quantity of gold
ornaments valued approximately at Rs.6.42 crores.
Their case is that they were carrying such
ornaments for showing them to retail outlet
owners at Chenai hoping to get bulk orders in the
process. Revenue authorities alerted by security
officials at airport though did not prevent the
passengers from boarding the flight, however,
when the flight landed at Chennai, all passengers
were detained. Their statements were recorded.
Simultaneously inquiries were also conducted at
the business premises of the company. Statements
of various persons were recorded. Authorities
also carried out inquiries with Karta of HUF at
Neemuch, who according to the petitioners was the
owner of gold which was leased to the petitioners
under certain conditions. On the basis of
satisfaction note recorded on 26.7.2012, search
and seizure operations were carried out against
the company and the persons who were travelling
on the said date from Ahmedabad to Chennai. Such
search and seizure operations were
challenged before this Court by the affected
persons in Special Civil Application
No.11593/2012 and connected petitions. Such
petitions were allowed by judgement dated
30.10.2012. Search and seizure operations were
Quashed We may notice that in our previous
judgement
dated 30.10.2012, we had dealt with very similar
grounds forming the foundation of search
operations. We had by our detailed judgement held
that same would not justify search authorisation.
Without repeating similar reasonings, we may
reproduce our findings arrived at in the previous
judgement which reads as under : 27. On the basis of the above decisions, it emerges
that mere possession of money, bullion, jewelery or such valuable article or
thing per-se would not be sufficient to enable the competent officer to form a
belief that the same had not been or would not be disclosed for the purpose of
the
Act. What is required is some concrete
material
to enable a reasonable person to form
such
a belief. It is, of course, true that such
belief
is a matter of subjective satisfaction of
the
competent authority. Such subjective satisfaction, however, must be formed on
the basis of the material on record and objective assessment of such material
and cannot be on the basis of a mere suspicion or
apprehension
that the income had not been or would not be disclosed for the purpose of the Act.
IN THE HIGH COURT
OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 578
of 2012 LAXMAN R JALU – HUF Date
: 11/02/2013 4. We are, however, of the opinion that none of
the
grounds raised by the assessee can be accepted.
Firstly, CIT(A) and the Tribunal both came to the
conclusion that the claim of the assessee that he
had
carried on agricultural operation and earned income
in
the earlier years was not genuine. The Assessing
Officer had given sufficient opportunities to the
assessee to substantiate his claim. After
considering
the explanation rendered, he on the basis of
evidence
on record, found that such claim was not well
founded.
It was noticed that the land was not owned by the
assessee. It was situated in Junagadh District,
whereas, the assessee was permanent resident of Surat.
It was also noticed that 7/12 record did not
quite
accurately tally with the sale proceeds bills
produced
by the assessee. 7/12 record mainly shows crop of
cotton whereas, the assessee had produced the
bills of
selling of Tuver, Mangfali and Wheat etc. The
Tribunal also confirmed the view of the Assessing Officer 6. In this
background, we may examine the counsel's
second contention. We may recall his contention
that
when the said sum of Rs.20,20,210/- was the
opening
balance for the year consideration, the same
should not
have been brought to taxation u/s. 68 of the Act.
We
are afraid that this contention suffers from
misconception with the assessee's claim and the
said
sum being a opening balance was accepted by the
revenue
authority. The Assessing Officer in terms had
rejected
such claim as being non-genuine other words, the
Assessing Officer refused to accept the
assessee's
stand that Rs.20,20,210/-, being a opening
balance of
the years. He committed no error in holding it as
explained cash credit
IN THE HIGH COURT
OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 1879
of 2010 SAURASHTRA KUTCH STOCK
EXCHANAGE SECURITIES Date : 11/02/2013 We find that
CIT(Appeals) as well as Tribunal both concurrently found that amount was
received
by way of share capital which was compulsorily
required to be invested by SAURASHTRA KUTCH STOCK
EXCHANAGE (SKSE) as per the
directives of SEBI. Payment was made through
cheque. Genuineness was never doubted. Company’s
capacity and identity of the buyer were also
established. The amount was for the purpose of
creating the share capital. Same was therefore,
rightly treated as capital receipt
IN THE HIGH COURT
OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 673
of 2012 SHYAM CORPORATION.... Having
heard learned counsel for the Revenue, we
have no reason to interfere. It appears that the
receipt for which revenue intends to invoke the
provisions of section 269SS or 269T as the case
may be for imposing penalty under section 271D or
271E as the case may be were during the
assessment proceedings treated as the booking
advance and consequently assessed as undisclosed
income of the assessee invoking section 68 of the
Act. Such amounts were treated as booking advance
and therefore, taxed as undisclosed income. We
agree with the view of CIT(Appeals) as well as
Tribunal that same would thereafter not bear the character
of loan or advances
No comments:
Post a Comment