Till and until both the credit earned and the product on which the credit is earned are lawfully utilized, it cannot be said that the credit has been lawfully and completely utilized; of course, the utilization of credit and utilization of input may not necessarily be in relation to one and the same final product; it can be in relation to two different dutiable final products.
Where the assessee was not provided with any opportunity of being heard in the matter, the reasons assigned in the order which was “administrative convenience and for co-ordinating effective investigation” also could not be said to be the reasons as envisaged in Section 127(1).
Even if there is any lacuna in the procedure followed by the Assessing Authority while rejecting the objections raised by the assessee against the notices issued under sections 147 and 148(1), it is not as if the assessee is left in lurch and deprived of its right from raising such issue, and it is open to the assessee to challenge the same, even at the time of questioning the final assessment orders.
The fact that the Agent has deducted tax under section 195 will not be a bar to proceed and pass an order under section 163 against the agent
Despite the clear objective behind enacting SARFAESI Act, 2002, while implementing the provisions of the Act, many complications have arisen and the Hon’ble Courts have cleared some complications making a good balance between the interests of the borrowers and the objective of Act to reduce the alarming levels of Non-performing Assets (NPA). Courts have dealt with the issue of limitation to approach the Debt Recovery Tribunal under section 17 of SARFAESI Act, 2002 and according me, it is the wonderful interpretation by Courts in giving the borrower a right to challenge the Bank’s action on all measures pursuant to section 13 (4) of the Act.
In a recent decision, in the case of CIT v. Vasisth Chay Vyapar Ltd. (Delhi High Court) [ITA 552/2005] dated 29 November, 2010 , the Delhi High Court in the context of loans given by a Non-Banking Financial Company (“NBFC”) held that in a scenario where interest on Non Performing Assets (“NPA”) was doubtful of recovery due to adverse financial circumstances of the borrower, it was legitimate move to infer that interest income had not accrued and was therefore not exigible to tax, irrespective of the fact that assessee followed mercantile system of accounting.
The decision of the High Court would bring some relief to NBFCs. However, given the fact that this is a debatable issue and unless affirmed by the SC, the tax authorities may continue to dispute the issue. This debate arises primarily due to the fact that under the Act, there is a specific provisions under Section 43D of the Income tax Act, 1961 dealing with interest on NPA with respect to specified financial institutions (including banks) which does not include NBFCs.
Recently, the Mumbai bench of Income-tax Appellate Tribunal (the Tribunal) in the case of Arif Akhatar Husssain (ITA No. 541/Mum/2010) held that the provisions of Section 50C of the Income-tax Act, 1961 (the Act) is applicable to the capital gains arising on transfer of Development Rights by the taxpayer.
The Mumbai bench of the Income Tax Appellate Tribunal (“ITAT”) recently pronounced its ruling in the case of M/s Nimbus Communications Limited vs. ACIT Circle 11(1), Mumbai for Assessment Year 2004-05, ITA No. 659 7/Mum/09 , on transfer pricing issues arising from amount overdue to the Taxpayer from its associate enterprise (“AE”). The tribunal held in favour of the Taxpayer observing that if a commercial transaction was at arms? length, no transfer pricing addition for non-charging of interest on overdue debt was warranted.
During the assessment year 2005-06, the Taxpayer sold fabrics worth INR 66,101,237 to its associated enterprise, M/s Spin International Inc., incorporated in the U.S., and relied on the Comparable Uncontrolled Price Method (“CUP Method”) to justify the arm’s length nature of such transaction. Upon examination of the Form 3CEB submitted by the Taxpayer, the Assessing Office (“AO”) found that in respect of two qualities of materials, the items were sold to the associated enterprise at much lower price compared to the price charged in comparable uncontrolled transactions entered into by the Taxpayer.
