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Showing 101 to 120 of 1677 Records
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2016 (9) TMI 1583
Additions u/s 16 (8) - income returned by the assessee/respondent - AO added amounts advanced by 18 unsecured creditors - revenue argues that the approach of the CIT (A) and the ITAT was incorrect because the assessee did not produce further details apart from the bank account particulars and the documents furnished - HELD THAT:- This court is unpersuaded with these submissions. Reading of the order of CIT (A) shows that remand specifically was sought; after considering the remand report and submission of both the parties, the CIT (A) was satisfied that the documents particularly the bank accounts statements revealed that the creditors were not fictitious but rather had genuine accounts and that they were also filing income tax returns.
Given the factual nature of these findings, the court is of the opinion that the proper test to discern the identity genuineness of the transaction and the credit worthiness of parties lending the amount – as required by law, especially in Commissioner of Income Tax vs. Lovely Export (P) Ltd. [2008 (1) TMI 575 - SC ORDER] has been followed. No question of law arises.
Disallowance of interest on the borrowings used for acquisition of non-business assets and non-business purposes - HELD THAT:- The court notices that CIT(A) had modified the findings after an overall appreciation of the facts. Instead of initial disallowance – which was in excess of ₹ 55 lacs, the appellate commissioner brought down the figure of disallowance to ₹ 3.69 lacs. That has been affirmed by the ITAT. Besides being entirely factual, the court is of the opinion that the AO‟s order itself is silent on the particulars as to the advances attributable to the specific assets upon which interest was sought to be disallowed on three counts. No question of law arises on this aspect as well.
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2016 (9) TMI 1582
Unexplained cash credit - addition u/s 68 - identity and genuineness of the sundry creditors was not established - HELD THAT:- From the facts of the case, it is not disputed that the sundry creditors pertain to purchases of scrap. Normally, the trading of scrap takes place in the unorganized business sector and unregulated market from where the assessee has to depend on procuring its raw materials. Generally the margin of profit in the nature of business of the assessee is minimal as less as one per cent or even lesser. There is also no finding by the Revenue that the assessee had not purchased scrap but the only doubt was with respect to the genuiness of two sundry creditors who had supplied raw materials to the assessee.
Documents which is part of the record and not before the Tribunal at the time of earlier hearing proves the fact that the identity of these sundry creditors are genuine. Since the above referred documents were lost sight off by the Tribunal on the earlier occasion, mistake had crept into the Order of the Tribunal which is apparent on record because of non-consideration of certain facts - assessee had paid by cheque to the sundry creditors, may be not directly by indirectly which is not prohibited by the Act - there is also no other finding by the Revenue on these aspects.
When the identity of the sundry creditors is proved and when the quantity of purchase of raw materials is not in dispute, then the transaction cannot be treated as bogus. Therefore AO is not justified in invoking the provisions of section 68 of the Act with regard to both these sundry creditors. Direct AO to delete the addition made by invoking the provisions of section 68 of the Act with regard to both these sundry creditors. Thus, the issue is decided in favour of the assessee.
Disallowance u/s 40A(3) - assessee has paid the aforesaid amount towards purchases without disclosing the names of the party from whom the purchase were made - AO made disallowance disallowed 20% - HELD THAT:-CIT-A confirmed the order of the learned Assessing Officer because before him also no material with cogent evidence was furnished to support the claim that cash purchases were less than the statutory limit. On this issue also no materials were furnished before us to establish that the provisions of section 40A(3) of the Act cannot be invoked in the case of the assessee.- Decided in favour of revenue.
Interest under section 234B & 234C is consequential.
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2016 (9) TMI 1581
Rejection of application filed under Order VII, Rule 11, CPC - main grievance urged in the plaint is that the procedure under the Act has not been followed and, therefore, the appellants are entitled to file a suit. If that be so, the plaintiff is entitled to file a suit - HELD THAT:- According to the appellants, the respondents have suppressed crucial facts in the plaint, which if seen, the suit is only to be dismissed at the threshold. Rejection of a plaint on institutional grounds is different from dismissal of a suit at pre-trial stage on the ground of maintainability. For dismissal on a preliminary issue, the Court is entitled and liable to look into the entire documents including those furnished by the defendant.
Appeal dismissed.
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2016 (9) TMI 1580
Violation of principles of Natural Justice - request for cross examination of various deponents of the statements which were relied upon in the show cause notice, is denied - HELD THAT:- Reasoning's adopted by the adjudicating authority in the present matter that cross examination cannot be permitted because the deponents of various statements are either co-noticee or employees of the assessees or relative of the assessee is not appreciable. In case the Revenue reliance is relatable to the said statements, their examination in chief is required to be conducted and thereafter cross examination is to be allowed.
The adjudicating authority is directed to allow the cross examination of the persons whose statements Revenue authorities intend to rely upon - appeal allowed by way of remand.
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2016 (9) TMI 1579
Deduction u/s 80-IA - Container Freight Station - AO disallowed the claim of the assessee on the ground that there was no agreement between the assessee and the Government of India or its agency - HELD THAT:- Circular No.10 of 2005 said that for the assessment year 2001-02 and for earlier assessment year, a certificate is required from concerned port authority indicating the Container Freight Station forms part of port and there shall be an agreement as infrastructure facility would be transferred to the concerned authority on expiry of time stipulated in the agreement. From the assessment year 2002-03, the CBDT has instructed that what is required for claiming 80-IA deduction is certificate from concerned port authority.
This issue was considered by the Madras High Court in CIT v. A.L. Logistics Pvt. Ltd. [2015 (1) TMI 401 - MADRAS HIGH COURT] after considering the Public Notification issued by the Commissioner of Customs and approval granted by the State Government, found that the assessee is eligible for deduction under Section 80-IA.
Container Freight Station established by the assessee is an extended arm of the port, therefore, eligible for exemption under Section 80-IA of the Act. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. - Decided against revenue.
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2016 (9) TMI 1578
Deduction u/s 80I in respect of the profits from the new industrial undertaking - assessee claims that it had established new unit in assessment year 1991-92, on which it was entitled to the benefit u/s 80I - HELD THAT:- Where the first year of deduction of claim of deduction u/s 80I by the assessee is assessment year 1991-92 and where the aforesaid deduction has been allowed to the assessee vide order passed under section 143(3) of the Act, the question arises is whether the same could be disturbed in the absence of any change in facts. The answer to the same is ‘No’. The authorities below have no power to disturb the continuity of claim of deduction u/s 80I for the stipulated period provided under the Act, where once such a claim has been allowed to the assessee in the initial assessment year, since that is the year when all the conditions available under the section have to be fulfilled by the assessee and where the assessee fulfils the same, it is entitled to claim the deduction, unless there is any change in facts and circumstances. Thereafter, from year to year, till the stipulated period expires, the assessee is entitled to claim the said deduction under section 80I. Grant of deduction disturbed in assessment year 1995-96 is deemed to have been allowed to the assessee, since the time period for allowing the appeal effect has expired
We hold that where the benefit of deduction was available for particular number of years, unless the same is withdrawn in the first year, it cannot be withdrawn for the subsequent years, particularly when there is no change in the facts. Applying the ratio laid down in CIT Vs. Paul Brothers [1992 (10) TMI 5 - BOMBAY HIGH COURT], M/s. Direct Information Pvt. Ltd. Vs. ITO [2011 (9) TMI 137 - BOMBAY HIGH COURT] and subsequently in CIT Vs. Western Outdoor Interactive Pvt. Ltd. [2012 (8) TMI 709 - BOMBAY HIGH COURT] we hold that the assessee is entitled to the deduction claimed under section 80I of the Act in assessment year 1992-93, wherein the first year of claim of deduction was assessment year 1991-92 and same has not been disturbed by any of the authorities till date. The Assessing Officer is thus, directed to allow the said claim of assessee.
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2016 (9) TMI 1577
Reopening of assessment u/s 147 - Addition on photo copy of unsigned agreement found during the course of search and transferred to the AO - HELD THAT:- This unsigned agreement have been forwarded by DCIT, Central Circle-I Ludhiana to the AO on the basis of which the aforesaid reasons have been recorded by AO for re-opening of the assessment. Since the seized document is not found from the possession of the assessee and admittedly the assessee had not signed the agreement in question and since he had not signed the agreement, no liability could be attributed qua that agreement towards him, since he was not a party to the agreement till he had signed the agreement.
The decisions in the cases of Kulwant Rai [2007 (2) TMI 185 - DELHI HIGH COURT] and Smt. Darshan Kaur [2009 (12) TMI 1039 - PUNJAB AND HARYANA HIGH COURT] squarely apply to the fact of the case since photo copy of unsigned agreement was found, therefore, it cannot be read in evidence against the assessee It is not a valid document to be considered adverse in nature against the assessee, therefore, there is no reason to believe for the Assessing Officer to have any information that income chargeable to tax has escaped assessment.
Authorities below have been holding that the agreement in question is admissible against the assessee because two of the cheque amounts mentioned in the agreement tally with the sale consideration mentioned in the sale deed of Shri Bhagveer Singh dated 21.05.2008. The date of sale deed i.e. 21.05.2008 would not fall in assessment year under appeal i.e. 2008-09 and there is no evidence or material available on record to prove genuineness of the photo copy of the unsigned copy of the agreement.
Merely because some cheque amount is same in both these documents, would not prove that addition could be made against the assessee on the basis of photo copy of unsigned agreement - No reason for the authorities below to hold that the contents given in the photo copy of unsigned agreement are correct.
Since on the basis of unsigned agreement, no liability could be attached to the assessee and it is not admissible in evidence against the assessee, therefore, there is no valid reason recorded by the AO for the purpose of re-opening of the assessment in the matter. There is also no basis for making any addition on merit on the basis of photo copy of unsigned agreement. AO wholly unjustified in re-opening of the assessment under section 147/148. - Decided in favour of assessee.
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2016 (9) TMI 1576
Set off of inter head adjustment of income from other sources against business loss of 10A unit - DR explained that it is in the nature of exempted business loss - AR submitted that under the provisions of sec. 70(1), set off of loss for one source against income from another source under the same head of income is allowed - HELD THAT:- As relying on material on record and judicial decisions and provisions of sec. 70 of the Act, we are of the opinion that the assessee-company is eligible for set off of business loss against other income including interest under the same head. And the Assessing Officer is directed to allow set off of the other income with business loss determined u/s 10A of the Act. - Decided in favour of assessee.
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2016 (9) TMI 1575
TP Adjustment - DRP granting 1% risk adjustment arbitrarily - HELD THAT:- ITAT in Intellinet Technologies Pvt. Ltd [2012 (6) TMI 237 - ITAT BANGALORE] held that the risk of having a single customer is an anticipated risk which may or may not happen unlike the marketing and technical risks which have to be contemporaneously dealt with by the comparables.
ITAT did not accept that the risk adjustment should be by 5% or at the difference of PLR of the RBI and the banks, and directed the TPO to consider all the contentions and decide the percentage of risk adjustments to be made in accordance with law. Respectfully following the decision of the Hon’ble ITAT Bangalore as above the TPO is directed to decide the percentage of risk adjustments to be calculated in this case. By means of guidance, it may be mentioned that in the case of DCIT Vs. Hello Soft Pvt. Ltd. [2013 (10) TMI 747 - ITAT HYDERABAD]1% adjustment to the average margin was provided towards risk differential. - Decided against revenue
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2016 (9) TMI 1574
Validity of assessment order - violation of principles of natural justice - TNVAT Act - HELD THAT:- The respondent examined the returns and appears to have once again made a verification/comparison with the data available in the Department web-site and came to the conclusion that the turnover reported by the petitioner in the monthly returns is lesser than the purchase details gathered from the Department web-site - the respondent should have given an opportunity to the petitioner to substantiate that the turnover reported by them in the return filed after the receipt of the pre-revision notices, is correct and if there are any discrepancies, the petitioner could have explained the same. Furthermore, even though the petitioner did not specifically seek for an opportunity of personal hearing, nothing prevented the Assessing Officer from calling upon the petitioner to appear before him and explain the discrepancies. However, this appears to have not been done and the assessment has been completed.
This Court holds that the impugned orders have been passed in violation of principles of natural justice - Petition allowed.
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2016 (9) TMI 1573
Deduction u/s 80-IA (4) - assessee had merely executed a work contract for IRCON International Ltd. for construction of some part of the Railway bridge and works contract u/s 80-IA(4) - HELD THAT:- Work executed is based on a contract between the Air Port Authority, Railway Department, Department of Roads in respect of each assessment year. AO in respect of each assessment year takes a different view by interpreting the contract. These contracts and the work executed fall within the ambit of Section 80-IA (4). Therefore, the assessment in contradiction by interpreting the contract at their will is impermissible. It will be contrary to law.
Since the requirements of Section 80-IA(4) are satisfied, the assessee is entitled to the benefit of deduction under Section 80-IA(4). The respondent assessee is entitled to the deduction in respect of all assessment years for which deduction under Section 80-IA(4) has been denied. - Decided in favour of the assessee.
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2016 (9) TMI 1572
Jurisdiction of ITO to frame the assessment - as per the return of income filed by the assessee in pursuance to notice u/s 142 (1) the assessee declared total income - HELD THAT:- In the facts of the present case, the judgment of KAPIL JAIN [2010 (8) TMI 1033 - DELHI HIGH COURT] cited by the ld. DR of the revenue is not applicable. Regarding this contention that this circular is applicable only in those cases where return is filed u/s 139 (1) and it is not applicable where return is filed u/s 142 (1) after survey, We feel that there is no merit in this contention because there is no such restriction in the circular and otherwise also, if ITO is not considered to be competent to frame an assessment where return is filed u/s 139 (1) declaring income in excess of a specified limit, then how the ITO can be competent to assesss similar return but filed after survey u/sc 142 (1). Hence, this contention is rejected.
We hold that the assessment order passed by the ITO in the present case is not a valid assessment order and hence, we set aside the same and restore the matter back for framing a de-novo assessment by a competent Officer being ACIT or DCIT. In view of our decision, other grounds raised by the assessee in its appeal and the appeal of the revenue do not require any separate adjudication at this stage. Appeal of the assessee is allowed for statistical purposes and the appeal of the revenue is dismissed.
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2016 (9) TMI 1571
Reopening of assessment u/s 147 - addition on account of excise duty expenses paid on capital goods purchased - CIT(A) was of the considered view that the AO has no new material to form the opinion that the income has escaped assessment no new facts, either by the audit party or by the AO, have been brought on record - HELD THAT:- It is not even in dispute that any fresh material or information came to the light suggesting that an income has escaped assessment. All the relevant material was before the AO at the stage of the original assessment itself. The only new input is an audit party objection which the AO himself has not accepted.
Once the AO contests the audit objection and continues to hold the belief as he had at the time of original assessment proceedings, but reopens the assessment proceedings as a measure of abundant caution nevertheless, it cannot be said that the AO had any reasons to believe that an income has escapade assessment- a belief which is a sine qua non for reopening the assessment. As also bearing in mind entirety of the case, uphold the action of the CIT(A), in quashing the reassessment proceedings, and decline to interfere in the matter. Appeal is dismissed.
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2016 (9) TMI 1570
Exemption u/s 11 - property sold/asset sold were donated to the other public charitable trust/institutions - AO made the addition under capital gain - as per assessee income donated resulted into application of income liable for exemption under Section 11 - HELD THAT:- As per insertion of Sec.11(1A) of the Act, option of charitable trust to apply sale proceeds for application to charitable or religious purpose including donation to another charitable trust has not been taken away but rather one more avenue has been opened that is investment in new capital asset to be treated as deemed application to charitable or religious purpose. The CBDT in Circular No.72 dated 6th January, 1972 has explained the legislative intent behind insertion of Sec.11(1A) of the Act as a measuring for grating tax relief and removing certain anomalies and practical difficulties.
Section 11(1A) of the Act does not place any restriction but it is enlarging the area of utilization. The Assessee trust has acquired land being capital asset for charitable purpose but due to abnormal increase in value due to establishment of Heart and Eye Hospital by group trust, it sold the capital assets and applied the proceeds by way of donation to group trust which is running ear and Eye Hospital. The trust is not allowed to do any business by its rules and regulations and the trust has not carried out any business and as such surplus on sale of land is not business income but is capital gain.
Land Development expenses disallowance - AO has proceeded on a complete wrong footing. It is not true that most of the land development expenses have been incurred after the sale of land. Rather expenses were incurred prior to sale and payment was made after realization from sale of land. The AO’s note that there is no justification of fencing of land already sold by the assessee trust after sale of a land is not true rather by fencing land was made fit for sale - there is no reason to disallow land development expenses. Indexation for land sold should be allowed as contended earlier this is capital gain and not business income.
Donation paid to Brahmanand Sewa Sadan should be allowed as application of income of trust for charitable purpose as:-
a) Capital gains are part of income and can be applied for charitable purpose including donation to another charitable trust.
b) Done Brahmanand Sewa Sadan is running Heart Hospital in association with Dr. Devi Shetty the renowned heart surgeon and Eye Hospital with renowned eye surgeon, Dr. Parth Biswas.
c) Audited accounts of Brahmanand Sewa Sadan are being filed along with Nil Income Tax assessment order.
Referring to legal position as explained in the decision of the ITAT Bangalore in the case of Al Ameen Education Socieity [2012 (11) TMI 346 - ITAT BANGALORE]we are of the view that the CIT(A) was justified in allowing relief to the Assessee. - Decided in favour of assessee.
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2016 (9) TMI 1569
Oppression and Mismanagement - default in holding its 28th annual general meeting to be held in the year June, 2013 - case of respondent is that 28th and 29th annual general meeting as was held on July 10, 2014 is without notice to the members as laid down in clause 32(a) of the articles of association of the company and the election of the office bearers of the said committee was done without casting of votes of general members in the annual general meeting held on July 10, 2014.
HELD THAT:- The memorandum of association and the articles of association is amended up to 2014 but the petitioner being a member of the Bengal Chemist and Druggist Association is not aware with regard to the amendment of 2014 and filed the company petition sometime in the year 2015 taking resort the articles of association and the memorandum of association as amended up to 2005 - Even after the lapse of one year, the petitioner has never come with any application for the amendment and even after receiving the reply by the respondent in the form of affidavit wherein the memorandum of association and the articles of association as amended up to 2014 is annexed and marked as annexure A, the petitioner was sitting idle.
It is an established principle that every alteration of the memorandum of association and the articles of association be filed with the Registrar of Companies. The respondents have also failed to explain and/or file any documents to show when the resolution was/were taken to amend the memorandum of association and the articles of association, as amended up to 2014 with due notice to member(s) - On the other hand, it is also found that the respondents have failed to show/prove and/or annexed any copy of the notices of annual general meeting which are issued to the petitioner which is mandatory as per their own articles of association as amended up to 2014.
It is admitted by the respondents that the petitioner is the member of Bengal Chemist and Druggists Association. As per the articles of association of the company, 2005 as enclosed by the petitioner with the petition, at clause 32. A general meeting will be held once in every year at such time by giving at least 21 days notice to its members (not being more than fifteen months after the holding of the preceding general meeting) and at such place as the Committee shall fix. Any other general meeting hold during a year will be called "extraordinary general meeting" and clause 32(b) requires three months' notice which is as per the own record of the respondent - in both the memorandum of association and articles of association of the company whether it is of 2005 and/or amended as of 2014 provision of issuance of notice has been made mandatory and is binding upon the company and its members.
The petitioner has not been able to controvert to the contentions of the respondents and in the instant case the respondent has failed to show any document and/or correspondence which will establish and prove that due notice of three months' has been served upon the petitioner in respect of holding of the annual general meeting on July 10, 2014 as per clause 32(a) of the articles of association, consequent upon which Committee was formed and office bearers have been elected without casting of votes by the members in Asansol Zone - respondents has totally failed to prove that they have followed the due process of law in holding the annual general meeting as stipulated in the memorandum of association and in the articles of association and that notices of the meetings have duly been served upon the petitioner/s as per clause 32(a) of the memorandum of association and the articles of association of 2005 vis-a-vis 2014 and the Executive Committee members were elected by way of casting the votes by the ordinary members.
The pre-conditions of holding the annual general meeting have not been fulfilled as the respondent has failed to produce the proof of service of notice of the annual general meeting held on July 10, 2014 to the members, attendance sheet of the said annual general meeting and the minutes of meeting thereof - respondent is hereby directed to convene the annual general meeting afresh and form the Executive Committee following the due process of law as per the memorandum of association and the articles of association as amended up to date so as to regularise the association and for the interest of its members including the petitioner, the list of which is annexed with the company petition as per annexure A3 as also to ensure that the petitioner and/or the members of the company are not prejudiced.
Application disposed off.
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2016 (9) TMI 1568
Reopening of assessment u/s 147 - Capital gain computation - reference to the provisions of Section 50C - HELD THAT:- Section 50C(1) specifically provides that where the consideration received qua transfer of land is less than the value adopted by the Stamp Valuation Authority, the value so adopted shall, for the purposes of Section 48, be deemed to be the full value of the consideration received as a result of the transfer. Section 48 of the Act provides the mode of computation of capital gains. A conjoint reading of Sections 50C and 48 of the Act shows that the deeming provisions of Section 50C are only for such computation. That being so, as rightly contended, the valuation adopted by the Stamp Valuation Authority cannot, by itself, be made the basis for reopening the concluded assessment.
A mere adoption of higher value of the property by the Stamp Valuation Authority cannot lead to a formation of belief of escapement of income, particularly when the value so adopted is adopted for stamp duty purposes only.
It is nowhere the case of the department that the AO had brought on record any tangible material whatsoever to suggest escapement of income, which could have, besides the Inspector’s report, led to the formation of belief of escapement of income. It is trite, as also considered in the case of ‘Income Tax Officer Vs. Shiv Shakti Build Home (P) Ltd.’ [2011 (2) TMI 760 - ITAT, JODHPUR] that there has to be a nexus between the formation of the belief and the alleged escapement of income. In the absence of any positive material brought on the record by the Assessing Officer to suggest escapement of income, no such nexus exists herein. - Decided in favour of assessee.
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2016 (9) TMI 1567
Addition towards Gold, silver jewellery found released at the time of search - Stridhan - HELD THAT:- As per Circular No. 1916 dated 11.05.1994 issued by the Central Board of Direct Taxes, possession of 500gms of jewellery by each married lady is permissible.
Circular requires non-seizure of jewellery to the extent of 500gms for married lady, 250gms for unmarried lady and 100grms for male to be extended to assessment proceedings and the same to be treated as explained income. Since there are three lady members in the family, as per the above CBDT Circular, possession of seized jewellery cannot be questioned. We, therefore, delete the addition sustained by the learned CIT(A). Appeal of the assessee stands partly allowed.
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2016 (9) TMI 1566
Taxability of receipt as 'Royalty’ - remuneration received by Microsoft regional sales Corporation (MRSC ) from Indian distributors for sale of software is taxable as “royalty” in the hands of GraceMac - India USA DTAA - retrospective amendment effect - HELD THAT:- The alteration in the provisions of the Act cannot be per se read into the treaty unless there is a corresponding negotiation between the two sovereign nations to amend the specific provision of "royalty" in the same line. The limitation clause cannot be read into the treaty for applying the provisions of domestic law like in Article 7 in some of the treaties, where domestic laws are made applicable. Here in this case, the 'royalty' has been specifically defined in the treaty and amendment to the definition of such term under the Act would not have any bearing on the definition of such term in the context of DTAA. A treaty which has entered between the two sovereign nations, then one country cannot unilaterally alter its provision. Thus, we do not find any merit in the contention of the Ld. DR that the amended and enlarged definition should be read into the Treaty.
As decided in of Infrasoft Ltd. [2013 (11) TMI 1382 - DELHI HIGH COURT] DIT v. Erisson [2011 (12) TMI 91 - DELHI HIGH COURT] and DIT v. Nokia Networks OY [2012 (9) TMI 409 - DELHI HIGH COURT]concluded that, when assessee supplies the software which is incorporated on CD, it has applied only a tangible property and payment made for acquiring such a property cannot be regarded as payment by way of royalty.
In ALCATEL LUCENT CANADA [2015 (5) TMI 431 - DELHI HIGH COURT] has held that sale of software is a sale of “copyrighted article and ultimately held that the payment for the same is not in the nature of “royalty”
With respect to the retrospective amendment by the Finance Act 2012, it has been held by Hon‘ble Delhi high court in case of DIT versus New Skies Satellite BV [2016 (2) TMI 415 - DELHI HIGH COURT]wherein it has been held that unless Double Taxation Avoidance Agreement is jointly amended by both the countries to incorporate particular income partaking the nature of “royalty” or amend definition in a manner so that such income automatically becomes royalty, The Finance Act, 2012 which inserted several explanations to section 9 (1) (vi) by itself would not affect the meaning of the term “royalty‘ as mentioned in article 12 of the Double Taxation Avoidance Agreement.Therefore, the retrospective amendment made to the Income tax Act will not apply in deciding the issue of taxability of income of the assessee in present case.
where the provisions of the Double Taxation Avoidance Agreement are more beneficial to the assessee, the treaty would prevail over the act. Accordingly the retrospective amendment made to the Income Tax Act, if are not beneficial to an assessee, who is also entitled to the benefit of the Double Taxation Avoidance Agreement, then whatever is less rigorous to the assessee should be followed for the purpose of the taxation in case of that assessee. In the present case therefore Double Taxation Avoidance Agreement between India and USA is required to be seen and applied, if by retrospective amendment to the Income Tax Act the taxation regime with respect to the “royalty‘ and “fees for technical service‘ have become more stringent.
In view of the above facts it is apparent that after rendering of the decision of the tribunal based on which the reopening has been initiated by revenue and addition has been made in the hands of the appellant, the decision of the Hon‘ble Delhi high court in case of DIT V versus Infrasoft limited covers the issue in favour of the assessee [2013 (11) TMI 1382 - DELHI HIGH COURT].
As the lower authorities did not have any benefit of the decision of the Hon‘ble Delhi high court while deciding the issue about the taxation of copyrighted article i.e. the software being sold by the appellant but have solely relied upon the decision of the coordinate bench in case of M/s Gracemac Corporation, it would be in the interest of the Justice to set the whole issue back to the file of the Ld. assessing officer to decide it afresh after considering the decision of Hon‘ble Delhi high court DIT versus Infrasoft Ltd (supra), applying it to nature of the software of the appellant, which covers the issue with respect to the sale of software holding that according to article 12 (3) of the Indo US DTAA, is a sale of “copyrighted article‘, and is not chargeable to tax as “royalty‘.
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2016 (9) TMI 1565
Deduction u/s 10A computation - exclusion of travel expenses by the AO from the export turnover - HELD THAT:- In instant case the expenditure had been incurred on foreign soil in connection with development of software by the employees of the assessee-company at foreign branch and nothing had been incurred on managerial or technical services rendered to any outsiders in foreign soil. In view of this discussion, it was to be held that said expenditure could not be excluded from the export turnover for computing deduction under section 10B. [Para 24]
As decided in M/S ZYLOG SYSTEMS LIMITED VERSUS THE INCOME TAX OFFICER [2010 (11) TMI 76 - ITAT, CHENNAI] that the expenditure incurred for the purpose of business in the Foreign soil should not be excluded from the export turnover for the purpose of deduction u/s 10B. In the assessee’s case the expenditure was incurred for the purpose of business and should not be excluded from the export turnover. The assessee’s case is squarely covered by the special bench decision. Therefore we delete the addition made by the AO and set aside the Lower authorities orders
Deduction u/s 80JJAA - AO was of the view that the company was engaged in the business of software and its employees cannot be called as workmen - HELD THAT:- As per the memorandum to Finance Act, 1988, sec. 80JJAA, the Government of India considered it necessary to provide fiscal incentives in Income-tax Act, in order to encourage the employers to create more and more employment opportunities. When the assessee is creating new employment opportunities, the beneficial provisions should not be summarily rejected. Though the assessee is engaged in manufacture of computer software Firstly it is covered by Explanation 1 of sec. 10(15) of the Act within the meaning of ‘industrial undertaking’ and it is supported by COMP-HELP SERVICES P. LTD. [1998 (10) TMI 15 - MADRAS HIGH COURT] . Secondly the employees working in the companies engaged in the computer software are also covered as ‘workmen’ within the meaning of Industrial Dispute act as per the decisions of coordinate benches of Bangalore and Delhi cited supra. The Government of Tamilnadu vide letter dated 30/05/2016 clarified that the IT industry is not exempted from the provisions of Industrial Disputes Ac 1947.
AO’s case is not that the assessee is not satisfying the eligibility conditions for deduction u/s 80JJAA. The learned DR did not place any material controverting the above decisions. Therefore, we hold that assessee is entitled for the deduction u/s 80JJAA and accordingly, we set aside the orders of the lower authorities and allow deduction u/s 80JJAA. The assessee’s grounds on this issue are allowed.
Short credit for the TDS - assessee claimed TDS of ₹ 14,82,45,072/- and the Assessing Officer has allowed only ₹ 14,19,47,495/- - HELD THAT:- AO is directed to verify the assessee’s claim and give credit for the shortfall. The assessee’s groungd on this issue is allowed for statistical purposes.
Computing the deduction u/s 10A - Exclusion of travel and communication expenditure incurred in foreign currency from total turnover - HELD THAT:- CIT(A), while deleting the addition, followed the decision of the Special Bench in ITO vs Sak Soft [2009 (3) TMI 243 - ITAT MADRAS-D] - DR during the appeal did not place any decision controverting the decision relied up on by the ld.CIT(A). Therefore, we do not find any infirmity in the order of the Ld.CIT(A) and the ground raised by the Revenue on this issue is dismissed.
TDS u/s 195 on software - whether transaction with non-resident towards purchase of software cannot be held as a royalty for use of copyrights u/s 9(1)(vi) r.w. Explanation 2, clause(v)? - CIT(A) deleted the addition relying on the decision of this Tribunal in the assessee’s own case [2014 (10) TMI 463 - ITAT CHENNAI] - HELD THAT:- DR relied on the assessment order and the ld. AR relied on the CIT(A)’s order. However, the ld. DR could not place any decision controverting the decision of the Tribunal in assessee’s own case. The ld. DR also did not cite any High Court judgment supporting the decision of Assessing Officer. Therefore, we do not find any infirmity in the order of the ld.CIT(A) and the same is upheld. The ground on this issue stands dismissed.
Marketing expenditure to subsidiaries - As per the CIT(A) in the present case the Australian subsidiary had been successfully generating revenues for the assessee through its activities and accordingly deleted the addition - HELD THAT:- The marketing expenditure is always incurred in advance and returns are expected subsequently in the business. Therefore, it is not correct to disallow the expenditure since there was no income. Sometimes even if the expenditure is incurred it will take lot of time to make the sales and to expect the business receipts. A prudent businessman has to incur business expenditure in the shape of marketing and product promotion in advance.
In the case of the assessee, the CIT(A) found that the payment was made for the compensation at the instance of Australian subsidiaries at Arm’s length basis at a mark up of 10% on the operating expenses. The operating expenses also had been defined in clause 4.3 of the marketing support service agreement dated 1.7.2009 which was produced before the CIT(A).
CIT(A) called for the details of the expenses incurred in connection with the transactions between the assessee and subsidiary companies for a period of four years and verified and then held that the disallowance has been made without examining the transactions perse. The CIT(A) also observed that the revenues have been generated in subsequent years, therefore, we agree with the order of the Ld. CIT(A) and uphold the same.
Revenue has raised objection under Rule 46A and Bench has asked the nature of additional evidence produced by the assessee before the Ld. CIT(A) - DR has replied that the agreement and the details of expenses. The agreement was placed before the Assessing Officer and the books of account were also produced by the assessee before the Assessing Officer. - We do not find any additional evidence produced by the assessee before the CIT(A) which requires a fresh opportunity to the Assessing Officer. Therefore, there is no merit in the ground raised by the Revenue in relation to Rule 46A. Accordingly, we dismiss the ground raised by the Revenue on this issue.
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2016 (9) TMI 1564
TDS u/s 192 - Requirement of deducting tax at source by the assessee as an employer on the payments made to the employees under the heading of uniform allowance - Appellate Commissioner confirmed the view of the Assessing Officer, observing that if the appellant's interpretation of term 'uniform' were to be accepted, in every office any dress worn by the employees would qualify as uniform - Tribunal was of the opinion that circular did not prescribe what can be categorized as uniform and resultantly dismissed the appeal - HELD THAT:- It is true that the circular dated 29.03.2010 did not cover the period under consideration. However, we cannot find fault with the Tribunal in referring to such circular. Firstly, the circular was produced on record and relied upon by the ONGC. This would not however mean that the Tribunal could have held the issue against the assessee on the basis of such a circular if it applied during a period post the financial year in question. But, if we eliminate this circular from record, there was nothing else suggesting that the ONGC did prescribe any uniform for its employees, at least for the period under consideration. If the stand of the ONGC was that the circular dated 05.12.1987 held the field, it ought to have produced such circular on record.
Revenue had collected materials to suggest that there was no uniform prescribed. Statement of senior officer of the ONGC suggested that prescription for uniform made in the past was withdrawn since 1995. If the assessee desired to rebut such material, it had to produce necessary evidence in this respect. Having failed to do so, ONGC cannot criticize the Tribunal for referring to the circular dated 29.03.2010, which the ONGC itself desire to rely upon.
An alternative submission was made to the effect that the dress code at the work place would qualify as uniform. We find two difficulties in accepting this submission. Firstly, there is nothing on record to suggest that there was any such dress code prescribed before the said circular dated 29.03.2010 was issued. In absence of any evidence, it is not possible for us to ascertain the nature of dress code and its effect. Even if we proceed on the basis, for the sake of argument that the dress code as referred to in circular dated 29.03.2010 or similar was prescribed during the period under consideration, we do not find that the same would qualify as prescription of a uniform. We have reproduced the relevant portion of the circular dated 29.03.2010.
Under this circular, the employer prescribed a dress code for male employees insisting that they must wear shirt which may be half or full sleeve. It should be buttoned and ironed, though stripe would be permissible, loud checks or printed shirts should be avoided. The employees would wear trousers of formal size and would not be permitted to wear cargo trousers. If ties are worn, they should match with the shirts and trousers, belts should be sober and footwear should be formal. Under certain circumstances, however, employees could wear sandals instead of shoes. For women, it was prescribed that they should wear ironed sarees of appropriate colors or traditional salwar kameez or ironed western business suits or formal ladies shirts with tailored dress or formal trousers.
These specifications, undoubtedly fit the common parlance meaning of “dress code” which is often referred to as the minimum standard of dressing depending on the place or occasion and can carry a wide range of choices at the command of the person concerned, of course, within certain parameters which would essentially exclude a certain dressing which is considered too informal or inappropriate for the occasion rather than to specify a precise set of clothes.
On the other hand, term 'uniform' in the context of dressing carries a vastly different connotation and would necessarily include precise instructions as to the dress, design, and also colours which will achieve a uniformity in dressing at a work place or at the place of study or some such collection of group of persons belonging to by and large a common class. The term uniform has been explained in the Webster's Third New International Dictionary (unabridged) as: marked by lack of variation, diversity, change in form, manner, worth or degree; marked by complete conformity to a rule or pattern or by salient detail or practice; marked by unvaried and changeless appearance. In the context of dressing, the term 'uniform' has been described in this dictionary as dress of a distinctive design or fashion adopted by or prescribed for members of a particular group (as an armed service, an order, or a social or a work group) and serving as a means of identification.
It can thus, be seen that the term 'uniform' in the context of dressing carries a precise meaning and a meaning which is entirely different from a far more broader concept of a general dress code.
Under the circumstances, we find no merits in these appeals. The same are dismissed.
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