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Showing 381 to 383 of 383 Records

• 2012 (1) TMI 6
  

  Validity of re-opening of assessment – erroneous deduction u/s 80HHC & 80IA – change in opinion – Held that:- The question of deductions u/s 80IA and 80HHC were specifically examined at the time of original assessment proceedings. Assessee had justified the claim and furnished documentary evidence or proof. The quantification of the claim was justified. This is a case of change of opinion. The opinion of the Assessing Officer may have been legally erroneous but this cannot be a ground for initiation of re-assessment proceedings. An erroneous decision which is prejudicial to the Revenue can be revised but the said option was not exercised. - Decided against the Revenue.

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• 2012 (1) TMI 5
  

  DTAA with AUSTRALIA – Fees for technical services (FTS) or inclusive contracts of technical nature - applicability of Articles 7 or 12 of the DTAA – assessee having PE in India – whether income to be construed as 'business income' or gross receipts to be taxed without any deduction – assessee opted to be taxed as per the provisions of the DTAA - Held that:- The payment in the present case is for furnishing of evaluation report. The assessee undertook certain tests, mapping and studies. Drilling for tests as to evaluate is to gain information and knowledge. The payment made is to acquire technical information. Therefore, it is fee for technical services.

  As per articles of DTAA, once an assessee has a PE in the contracting state of which he is not resident, then paragraphs 1 and 2 of the Article 12 of DTAA would not apply. In such cases Article 7 or 14 would apply. Thus, it is held that Article 12 of the DTAA is not applicable.

  Article 7 deals with business profits and will apply. Expenses incurred by the assessee can be claimed as a deduction but only in accordance with and subject to limitation stipulated in the Act. Section 44D postulates non-applicability of Sections 28 to 44C in case of foreign company earning income by way of royalty or fees from technical services. Thus, Section 44D is applicable to compute taxable Income. - Decided against the Revenue

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• 2012 (1) TMI 4
  

  Penalty imposed u/s 76, 78 of Finance Act 1994 deleted by Tribunal – service tax liability established on payments/commission received by assessee from banks/financial institutions on cars sold under finance schemes - Business Auxiliary Service – two corrigendums were issued calling upon and asking the assessee to defend the penalty - Held that:- The order of Tribunal specifically states that the corrigendums were issued invoking Section 78 of the Act hence, penalty u/s 78 cannot be deleted on the ground that the show cause notice did not grant any opportunity of rebuttal to the respondent to defend the penalty under the said Section. Therefore, the matter is remitted to the Tribunal for a fresh decision.

  The Tribunal while deleting the penalty u/s 76 has not discussed and stated the stand of the assessee only. Thus, matter is restored back to the Tribunal to decided whether or not there was any reasonable cause. - Decided in favor of Revenue.

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