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Income Tax - Case Laws
Showing 381 to 400 of 743 Records
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2012 (9) TMI 609
Validity of notice issued u/s 148 on March 21, 2003, in respect of the AY 1996-97 which is beyond a period of four years from the end of the relevant AY, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment - dis-allowance u/s 40(a)(ia) - payment of usance interest to nonresidents out of the boundaries of India on purchase of ships - Held that:- A perusal of the reasons recorded shows that there is not even a whisper therein to the effect that there is any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration. Under the circumstances, the notice having been issued after the expiry of a period of four years from the end of the relevant assessment year, the assumption of jurisdiction u/s 147 by the Assessing Officer is without authority of law - Decided in favor of assessee
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2012 (9) TMI 608
Relinquishment of tenancy rights - Income from other sources or Capital gains - non-allowance of relief u/s 54EC - assessee, partner in a firm called George Nainan & Co., surrendered his tenancy right on the property to the other partner of the firm - owners of the property had originally let out the property in to Mr. T who surrendered his tenancy rights on 10.10.82 and the landlord had entered into an agreement with George John and Shri Sunny Nainon on 3.10.1982 for the tenancy - Though the occupation of the premises was spilt between the partners namely Shri George John and Shri Sunny Nainon, the tenant of the property was in fact the firm and not the individual partners - Revenue contended that assessee was not the tenant and, therefore, there arises no question of relinquishment of tenancy right to other partner
Held that:- Though in the lease deed, the lessee is Shri George Nainon and Co., it is in fact the partners who are occupying the premises individually. It is also not in dispute that even after 1982, the property was not occupied jointly and severally but was occupied individually and separately. Thus, the advantage of common occupation and enjoyment is absent. It is also worth noting that it was not necessary to mention that the tenancy right over the property could not be separated without mutual consent had it been the right of the firm. Thus the intention of the parties to hold the right of tenancy over the respective portion of the property was clear from the clauses of the lease deed itself. Thus in line with the said clause, when the assessee relinquished his right, it has resulted in capital receipt and thus the assessee has rightly claimed it to be a capital receipt and is also eligible for deduction u/s 54EC of the Act for the amount invested in NABARD capital gains Bonds - Decided in favor of assessee
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2012 (9) TMI 594
Addition on account of purchase of property - benami purchase of property in Seelampur - ITAT deleted the addition - Held that:- Tribunal overlooked that though Om Prakash, one of the property dealer filed an affidavit before the AO, Fakir Chand, the seller of property did not respond to the summons issued by the AO. There is no plausible explanation from the assessee why the documents relating to the property were found in his residence if he had nothing to do with it - The documents include the General Power of Attorney and an Agreement to Sell which bore the signature of Fakir Chand, seller. The fact that the name of the buyer was not mentioned in the documents is a fact which goes in favour of the revenue - neither Fakir Chand nor Om Prakash, the property dealer, came forward to claim the documents which is quite unusual if the intention of handing over the documents was only to enable the assessee to consider the proposal for buying the property. The Tribunal also overlooked that the name of the owner of the property was not mentioned in the affidavit of the property dealer - against assessee.
Addition on account of FDRs based on dumb documents - ITAT deleted the addition - Held that:- Tribunal saw the seized paper as a “dumb document” which meant that nothing could be understood from it. The document, according to the Tribunal, merely noted a figure of Rs.27,50,000/- without any details whereas details of other fixed deposits made with Karnataka Bank were given including the interest figure. The Tribunal also felt difficulty in gathering the details of fixed deposits for Rs.27,50,000/- from the seized paper; there was no date or signature therein. On these facts the Tribunal has drawn the conclusion that the addition is without any basis - in favour of the assessee.
Addition on account of investment in M/s Fair Deal Garments - ITAT deleted the addition - Held that:- The Tribunal has overlooked that the seized papers contained date-wise receipts of amounts from the assessee between 26.11.1993 and 10.2.1994. Sunil Gupta, the assessee‟s nephew had not started any business during this period. He started the business only on 26.12.1994. There was therefore no possibility or reason for him to make any investment in Fair Deal Garment before 26.12.1994. Sunil Gupta was for some time employed with Jai Pal Aggarwal and that was the reason why the documents were found in his possession. The assessee has not denied this. These crucial aspects have been overlooked by the Tribunal while deleting the addition against assessee.
Addition on account of cash deposits made by the assessee - ITAT deleted the addition - Held that:- The Tribunal has not given any valid reason for deleting the addition as it has rested its decision on Annexure 3 in which the assessee had supposedly explained the cash deposits. This Annexure is not before thus court therefore, no means of knowing what the explanation is. Moreover, before the Assessing Officer the assessee does not appear to have submitted any explanation - we set aside the finding of the Tribunal and restore the matter to the file of the Assessing Officer, who shall consider the assessee‟s explanation given in Annexure 3 - in favour of revenue by way of remand.
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2012 (9) TMI 593
Addition on account of Peak credit - undisclosed income - ITAT deleted the addition made in block assessment - Held that:- Considering the gist of the statement of Hemant Shah, Director of the Company who advanced loans it is is seen therefrom that the assessee’s name was not mentioned by him at all as beneficiary of the accommodation entry business carried by him and merely stated that he did not deal with any ship-breaker and he had given only loan after taking cash and deducting commission.
Even if the Revenue can be said to have successfully established that Mahendra Shah was carrying on the business of giving accommodation entries for commission, it does not follow that the loans taken by the assessee from the various companies allegedly belonging to the Madhupuri Group of Companies were accommodation loans. From the statement it is not possible to establish any link between Mahendra Shah and the creditor companies or that he was in a position to influence those companies into carrying on the accommodation entry business - The material on the basis of which the addition in the present case is sought to be made falls short of the requirement of the sub-section (1) of 158BB which says that computation of the undisclosed income of the block period has to be made on the basis of evidence found as a result of search as there is nothing to link the assessee with the accommodation entry business stated to be carried on by Mahendra Shah whose statement constituted the sole basis of the addition - in favour of the assessee
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2012 (9) TMI 592
Disallowance of exemption u/s 10B - CIT(A) allowed it approving the admission of the additional evidence - Held that:- As far as the first objection raised by the AO that the assessee was formed by the splitting up, or the reconstruction, of a business already in existence is not acceptable as mere reconstitution of the partnership firm can hardly be said to amount to the splitting up, or the reconstruction, of the partnership business which was already in existence. There is no dispute that after the partnership was reconstitued, the reconstituted firm had started a new business with an amendment to the partnership deed enabling the firm to carry on the manufacture and export of handicrafts items. Prior to the reconstitution the firm was authorized to merely carry on trading and exports of handicrafts etc. That apart the balance sheet as on 31st March, 2006 undisputedly shows that the assessee had acquired tools and the machinery, which were not with the firm prior to the reconstitution. Even the profit and loss accounts drawn up after the reconstitution showed manufacturing expenses and wages.Thus unable to appreciate how the Revenue can contend that the undertaking owned by the assessee was formed by the splitting up or reconstruction of the erstwhile partnership business. The contention is contrary to the facts on record - in favour of assessee.
COU - Scope of term manufacture - One of the main objections of the AO was that the EOU was directed to be custom-bonded which was not complied with by the assessee. The CIT(Appeals) held that custom-bonding was required only where imports as per notification No.53/97 –customs dated 3rd June, 1997 are contemplated and since the assessee-firm did not plan to import any materials to be used in the manufacture of ingredients, the EOU was not custom-bonded - in favour of assessee.
Disregard to Rule 46 A as no reasonable opportunity was given to the AO before approving the admission of the additional evidence by the CIT(A) - ITAT stated that AO took 15 months and more to submit the remand report - Held that:- The appeals before the CIT(Appeals) were filed by the assessee on 18.1.2010. It was in the course of the appeal proceedings that additional evidence had been produced and a remand report was called for by the CIT(Appeals). The appeals were eventually disposed of by the CIT(Appeals) by a common order dated 30.03.2010. Thus the entire appeal proceedings had taken less than three months for completion. In this background, it is not understandable as to how the Assessing Officer can be blamed to have delayed his remand report beyond 15 months - As the claim of the assessee based on the additional evidence had to be properly verified by the AO restore this issue to the file of the Assessing Officer to enable him to process the claim of the assessee afresh - in favour of revenue.
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2012 (9) TMI 591
Disallowance of Bad debts - ITAT delete the addition - Held that:- The assessee did not receive the payment from Delhi Vidyut Board as the said amount was deducted in lieu of penalty for late delivery of goods (repaired transformers and the matter is subjudice before the arbitrator. The amount may be taxed in the hands of the assessee in the financial year in which it is received by the assessee, if he succeeds in the arbitration - For the present, the amount stands deducted and thus the matter does not call for any interference by the High Court.
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2012 (9) TMI 590
Disallowance u/s 40A (3) - payments made to the butchers - ITAT deleted the addition - Held that:- As decided in The Commissioner Of Income Tax Versus M/S Milky Exports International [2010 (11) TMI 55 - ALLAHABAD HIGH COURT] payment has been made to the butchers whose genuineness has never been doubted - this is finding of fact and there is no illegality in the same can be pointed - against revenue.
'Building Repair & Maintenance' at Mumbai and Meerut - Held that:- Similar issue arise in M/S Milky Exports International [2010 (11) TMI 55 - ALLAHABAD HIGH COURT] case wherein the AO had earned in holding amount were not for 'Building Repair & Maintenance' at Mumbai and Meerut is revenue expenditure - AO had earned in holding that these were not capital expenditure ignoring the fact that the expenditure related to the capital works during the year and the definition of words "current repairs" under Section 31 of the Act - against revenue.
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2012 (9) TMI 589
Penalty u/s 271 (1) (C) - wrong description of the status of the assessee - CIT (A) deleted the levy - Held that:- Wrong description of the status of the assessee, which was corrected immediately by filing revised return, and in which the loss was reduced on account of a notification issued by the Ministry of Awas and Town Planning, could not be treated as furnishing inaccurate particulars to attract the penalty clause under Section 271 (1) (c) - The mistake was immediately accepted and did not result into any loss to the revenue. We may also observe here that when the Assessing Authority was fully aware that Hapur Pilkhuwa Development Authority, constituted under the U.P. Urban Planning and Development Act, 1973 is a local authority, a mere wrong description of the status should not have been a ground to award penalty.
No error in the findings of CIT (A) and ITAT that there was no declaration of inaccurate particulars. Even if the mens rea may not be necessary, in attracting the penalty, the ratio of the judgment of the Supreme Court in CIT v. Reliance Petroproducts Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT) wherein it is held that A mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee supports the conclusions of the CIT (A) and ITAT that in this case the penalty under Section 271 (1) (c) of the Act was not attracted - in favour of assessee.
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2012 (9) TMI 588
TDS liability on the amount of interest paid on delayed payment of compensation - Proceedings regarding claim under Motor Vehicle Act - whether the interest paid does not come with in the ambit of section 2(28A)? - ITAT allowed the relief by canceling the liability - AY 1998-99 to 2002-03 - Held that:- The word "interest" as defined under Section 2(28A) has to be construed strictly as necessary ingredients of such interest are that it should be in respect of any money borrowed or debt incurred. The award under the Motor Vehicle Act is neither the money borrowed by the insurance company nor the debt incurred upon the insurance company. As far as the word "claim" is concerned, it should also be regarding a deposit or other similar right or obligation. The definition of Section 2(28A) of the IT Act again repeats the words "monies borrowed or debt incurred" which clearly shows the intention of the legislature is that if the assessee has received any interest in respect of monies borrowed or debt incurred including a deposit, claim or other similar right or obligation, or any service fee or other charge in respect of monies borrowed or debt incurred has been received then certainly it shall come within the definition of interest.
Insertion of clause (ix) to Section 194A(3) by the Finance Act 2003 with effect from 1.6.2003 also goes to show that prior to 1.6.2003, the legislature had no intention to charge any tax on the interest received as compensation under the Motor Vehicle Act. Even under the amended Act, interest received in excess of Rs.50,000/- has been subjected to tax liability. Certainly such interest exceeding Rs.50,000/- has further to be split amongst all the claimants and has to be spread over for each of the assessment years. Accordingly there appears to be no justification to cast liability to deduct the tax at source on the amount of interest paid on compensation under Motor Vehicle Act prior to 1.6.2003.
The award of compensation under motor accidents claims cannot be regarded as income. The award is in the form of compensation to the legal heirs for the loss of life of their bread earner. Hence the interest on such award also cannot be termed as income to the legal heirs of the deceased or the victim himself - The award under the Motor Vehicle Act is like a decree of the court. It do not come within the definition of income as mentioned in Section 194A(1) read with Section 2(28A) of the Income Tax Act, thus the interest paid on compensation under motor accident claims awards prior to 1.6.2003 cannot be treated as income from the interest - in favour of assessee.
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2012 (9) TMI 587
Determination to the cost of the construction - case referred to departmental Valuation Officer (DVO)- Held that:- As decided in Smt. Amiya Bala Paul Versus Commissioner of Income-Tax [2003 (7) TMI 4 - SUPREME COURT] having assessed the value on the basis of the seized material, the A.O. could not have referred the matter of estimation of value to the Valuation Officer. Section 55A falls in Chapter IV-Computation of Income From Capital Goods. The special procedure for assessment of search case, is provided in Chapter XIV-B. The assessment of undisclosed income as a result of search is made under Section 158BA for which procedure for block assessment is provided under Section 158BC. The A.O. can assess the undisclosed income as a result of search only on the basis of material or information as are available in the search. He is not authorised to refer the matter to the Valuation Officer under Section 55A (b) (ii) to asses the fair market value. Such an enquiry is not permissible in respect of search cases - in favour of assessee.
Gift received from Nepal - Held that:- It is a settled preposition of law that the AO can examine the genuineness of gift, the capacity and identity of the donor. The assessees had informed the Assessing Authority that donors are their uncles and they reside in Nepal. It cannot be believed that the assessees did not know the full address of the donors. The address given by the assessees is Krishna Nagar, Nepal. Nepal is a country which has several districts. It was not sufficient on the part of the assessees merely to show that the donors are citizens of Nepal. Hence the identity of the donors was not established. As far as the capacity of the donors is concerned, it was also not proved - Merely because the assessees have shown the receipts by demand drafts from Nepal, it cannot be presumed that the gifts are genuine - against assessee.
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2012 (9) TMI 586
Disallowance of job work charges - no traces of manufacturing activities found - ITAT allowed the claim - Held that:- ITAT allowed the claim as evidence place on record amply affirms that M/s K.S.M. Exports Ltd. was having as much as 543 workers on its roll for whom contribution towards Employees Pension Scheme and Provident Fund etc. was being paid by it and when M/s K.S.M. Exports Ltd. was not carrying on any business of its own, then the only conclusion is that its workers were carrying on job work for and on behalf of the assessee. Thus no infirmity in the assessee's claim of having paid job work charges to M/s K.S.M. Exports Ltd. and the addition made by disallowing the assessee's claim need to be deleted - against revenue.
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2012 (9) TMI 585
Disallowance of deduction u/s. 80IB(10) - CIT(A) allowed the claim - Held that:- As amendment brought under the section w.e.f. 1.4.2005 i.e. A.Y. 2005-06. Clause (d) introduced new condition of claim of deduction u/s. 80IB(10) of the Act restricting maximum commercial built up area of 2000 Sq. ft or 5% of aggregate built up area of the housing project whichever is less.
Those housing project having commercial built up area of more than 2000 Sq. ft are not eligible for deduction u/s 80IB(10) and as the assessee has exceeded maximum permissible limit provided in the Act having a commercial built up area of 6415 Sq. ft., hence assessee’s submissions cannot be accepted that prior to amendment there was no upper cap on construction of commercial area. As assessment year involved in the present case is 2006- 07 assessee claims is liable to be rejected - The contention of the assessee that the project was started keeping in mind the pre amended provisions of Sec. 80IB(10) and therefore any subsequent changes should not change the project profile cannot be accepted - findings of the CIT(A) are reversed and that of the AO are restored - against assessee.
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2012 (9) TMI 584
Reassessment proceedings - ITAT quashed the notice issued u/s 148 - Held that:- In view of the judgment in Rajesh Jhaveri Stock Brokers P. Ltd. (2007 (5) TMI 197 - SUPREME COURT ), after 1st April, 1989, in accepting the returns under Section 143 (1) (a) AO does not apply his mind and that the acknowledgment is received mostly by ministerial staff. In such case where any material is found and the notice u/s 148 has to be issued, the AO is competent to issue the notice except in a case, where more than 4 years have expired. In such cases the satisfaction has to be recorded by an officer higher in rank. The discretion in such a case cannot be left with the A.O. The satisfaction of the Joint Commissioner has to be recorded before the Assessing Officer, who may be an ITO, issues a notice under Section 148.
In the present case we find that there is positive finding in the order of CIT (A) that in respect of assessment year 1995-96 the record shows that the Addl. Commissioner of Income Tax has given approval of issuance of notice under Section 148 on 20.3.2002. We, however, do not find any positive finding in this regard in Income Tax Appeal No.749 of 2007 relating to year 1996-97 and 1997-98 - decided in favour of the revenue and remand the matter to the Income Tax Appellate Tribunal to consider the appeal afresh and before considering the matter on merit with regard to assessment years 1996-97 and 1997-98 the Income Tax Appellate Tribunal will ascertain from the record, whether the satisfaction is recorded by the Joint Commissioner or Addl. Commissioner as the case may be or the officer, who was higher to the Income Tax Officer in the relevant year as it is only after he find that such satisfaction is recorded in accordance with Section 152 (2), that he may proceed to decide the appeals - against assessee.
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2012 (9) TMI 583
Transfer Pricing – Addition on account of computation of Arm’s length price - Assessee had imported raw materials, exported finished goods to associate enterprises - The most appropriate method adopted in the Transfer Pricing Report was Transaction Net Margin Method - Identify 5 comparable companies that engaged in same type of business – TPO rejects 4 comparable companies – Held that:- After analysis all the comparable companies by ITAT direct that TPO has to work out the arithmetic mean of these four companies for determining the arms length price of the assessee company for the international transactions. Therefore case remand back to AO.
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2012 (9) TMI 582
Capital gain – Asset inherited to assessee – Computation of Index cost of acquisition – Whether the year in which the previous owner first held the asset or the year in which the asset inherited to assessee used for indexation – Held that:- Following the decision of BOMBAY HIGH COURT in case of Manjula J. Shah (2011 (10) TMI 406) that while computing the capital gains arising on transfer of a capital asset acquired by the assessee under a gift/inheritance, the indexed cost of acquisition has to be computed with reference to the year in which the previous owner first held the asset and not the year in which the assessee became the owner of the asset. Appeal decides in favour of assessee
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2012 (9) TMI 581
Addition made on account of unexplained cash credits u/s 68 as the assessee failed to prove the source of such deposits in his bank account - assessee claims it to be out of sale proceeds of retail business - return filed u/s 44AF - Held that:- Admittedly since the turnover of the assessee is below Rs. 40 lacs, therefore, as per the provisions of section 44AF, the assessee is not expected to maintain books of accounts. The assessee disclosed income of Rs.76,235/- in his return. The impugned amounts were found to be deposited out of the sale proceeds of retail business where the total turnover/sales are to the tune of Rs.13,91,425/-. What documentary evidence can be produced by the assessee from the retail business is always not possible. No other documentary evidence was brought on record by the AO except suspecting the deposits made by the assessee. Therefore, CIT(A) rightly deleted the addition - Decided against Revenue
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2012 (9) TMI 580
Addition u/s 68 - share application money - assessee contesting the assessment framed u/s 143(3) on ground of wrong assumption of jurisdiction - non-serving of notice u/s 143(2)(ii) - assessee also contesting non-admission of additional evidences by CIT(A) - Held that:- Finding recorded by the AO in his remand report and also by CIT(A) in his appellate order with regard to issue and dispatch of notices, on the said address given by the assessee in its PAN application has not been controverted by assessee by brining any positive material on record. Since assessee was in actual receipt of intimation u/s 143(1) and also refund order which was encashed by assessee in its bank account, there is no reason for accepting assessee’s contention for non-service of notice u/s 143(2) on the very same address. Ground taken by the assessee with regard to non service of notice is hereby dismissed.
Additional evidences produced by the assessee before the CIT(A) goes to the root of the issue for deciding the identity, creditworthiness and genuineness of transaction in respect of share application money. In the interest of justice, we accept the additional evidence filed by the assessee and direct the AO to consider the issue afresh - Decided in favor of assessee for statistical purposes.
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2012 (9) TMI 579
Addition u/s 68 on account of Share application money – Investor's company invested money in assessee’s share at a premium - Same were bought back by the promoters/director of assessee in the very next year at a 90% discount – Detailed inquiry has been made by the AO – Sending letters u/s 133(6) and personally visited on given address of investors – AO come to conclusion that they were just paper companies and did not exist in reality - Held that:- As no sign board was hang on the premises , neighbor told that office is closed long back and not listen the name of investor company. On an enquiry made from investor’s bank reveals that cash was deposited immediately prior to issue of cheque to the assessee and the account of these companies was closed immediately after transfer of funds. It seems there was no genuine transaction of share capital, the companies were not existed at all. Assessee himself routed his funds through these companies. Assessee could not rebut the same by bringing any positive material on record to substantiate the identity and authenticity of investors. Therefore, confirm the action of AO & CIT (A) for applying provisions of Sec 68 in respect of share capital received from company as well as individual investors. Appeal decides in favour of revenue.
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2012 (9) TMI 578
Disallowance of salary paid to working partner u/s 40(b)(i) – Working partner is an agent of two insurance companies despite being a partner – As per partnership deed, partner without consent of other partners cannot engage in other business either directly or indirectly – No chamber provided to partner in office of assessee – Held that:- Since partners was working as a working partner since inception and regularly attended the work of the assessee’s firm. Assessee submits copy of many bank cheques, having signature of partner as ‘Managing Partner’ and supporting bank statements. Assessee also provides NOC given by another partner for carrying on her own insurance agency business. On remand, the AO examined those documents and found correct. Decision in favour of assessee
Addition of Service Tax being debit in P&L – Assessee receive insurance commission from insurance companies – Assessee passes accounting entry by gross commission & debit the Service Tax in P&L – Held that:- As per agreement insurance company will pay net amount after deduction of Service Tax. As per Rule 2 (d)(iii) of Service Tax Rules, this service comes under reverse charge mechanism. Therefore, insurance company liable to pay Service Tax. As far as assessee concern, credited the entire gross commission and debited the service tax in its books. The net result would be the same. Appeal decides in favour of assessee
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2012 (9) TMI 577
Exemption u/s 10 of agricultural income - contract farming - Assessee produce basic seeds in its own lands and hybrid seeds on the lands leased by it – AO’s objection are that the germplasm is generated out of scientific research and, therefore, it is not agricultural activity – Held that:- Simply because the basic seeds are not fit for human consumption, it cannot be said that the produce is not agricultural produce.
The assessee procures germplasm and sows in its own field, and carries on all agricultural operations and produces the basic seeds. The Basic Seeds so harvested are again put through agricultural operations intimately connected with leasehold land for finally bringing out the Hybrid Seeds. Only for the reason that the Basic Seeds are sown in leasehold land and the manpower required are arranged through contract farming, it does not mean that the operations carried out by the assessee are not agricultural operations. Assessee has carried out basic as well as secondary agricultural operations. Therefore, entire such income of the assessee is agricultural in nature. Appeal decides in favour of assessee
Depreciation on technical know-how fees – Held that:- As the Tribunal for the previous assessment year has directed the AO to consider the alternate plea of the assessee for allowance of depreciation on technical know-how fees, if claim is in accordance with law. Subsequently, the depreciation on technical-know-how fees treated as capital expenditure has been allowed. Therefore, depreciation on technical-know-how fees should be treated as capital expenditure and depreciation allowed. Case remand back to AO
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