What is prohibited and barred is application of income or use of the property of the institution directly or indirectly for benefit of a person mentioned in Section 13(3) i.e. he is paid beyond what is reasonable, adequate, commensurate and justified for the services rendered or goods supplied. The said person should not profit at the expense of the trust/institution. Charity should not become the primary or important source of business profits and a façade to promote business interest or secure advantage, for persons mentioned in Section 13(3) in the name of charity. The word “benefit” need not be restricted to direct material benefit, but is of wide significance comprehending whatever would be beneficial in any respect, materially or otherwise. Benefit can be pecuniary or non pecuniary. This would be the correct legislative intent.
Once it is held that the office of a chartered accountant or of a firm of chartered accountants does not come within the expression of shop or commercial establishment as defined in the Act of 1961, the corollary would be that the provisions of the Act of 1961 cannot be applied to the office of a chartered accountant or of a firm of chartered accountants.
The Principal Judge, Small Causes Court, Pune, and thereafter the District Judge, Pune, negatived the contention of the Corporation holding that profession of Chartered Accountant is neither a trade nor a business. Advocate for the Respondents drew my attention to the judgment reported in Current Tax Reporter Volume 80 Phillipos & Company, Chartered Accountants & Ors. versus State. This is the Judgment of the Karnataka High Court, wherein it is held that Office of the Chartered Accountant or of a firm of a Chartered Accountant is not an establishment within the meaning of Section 2(i) of the Karnataka Shops and Commercial Establishments Act, 1961, it is neither a shop nor a commercial establishment.
The Appellants are dealers of Ford Motor vehicles and they had entered into agreements with different banks and also with Non-Banking Financial Companies to market car-loan to potential customers. For loan taken by the customers, these appellants got commission from the banks and NBFCs. The issue in this appeal is whether service tax is to be paid on such commission categorizing the activity of the Appellants as “business auxiliary service”. Definition of BAS services had been substituted wef 10.09.2004 and in substituted definition services of commission agent were expressly included and since then only assessee started paying service tax. Assessee also contended that services provided by them were taxable under Business Support Services and not under Business Auxiliary Services
Assessee was a tax resident of Singapore. The applicant sought a ruling on taxability of subscription fee received from users in India to access the online information database maintained by it. AAR was of the view that the market intelligence services provided by the applicant on online portal was taxable as Royalty as per Clause (iv) of Explanation 2 to Section 9(1) (vi) of the Income Tax Act, 1961 The same was also taxable as Royalty as per Article 12(2) of India -Singapore Double Taxation Avoidance Agreement.
Transfer Pricing Officer recomputed the expenditure relating to reimbursement of business promotion expenses by Assessee to its associated enterprise based in Cyprus. The TPO had compared the said expense with the average of promotional expenditure incurred by 17 pharmaceutical companies, to compute arm’s length price (ALP) using Transaction Net Margin Method (TNMM). The Honourable Mumbai Tribunal held that the TPO had adopted an adhoc method and not TNMM to disallow the said expenses under the guise of Transfer Pricing provisions; hence the addition on account of disallowance was deleted.
In the case of a salaried taxpayer, entire tax liability is discharged by the employer through deduction of tax at source. Complete details of such taxpayers are also reported by the employer through Tax Deduction at Source (TDS) statements. Therefore, in cases where there is no other source of income, filing of a return is a duplication of existing information.
Assessee has invested in purchase of new residential house at Rs. 70,80,620/- within the period of two years in which the transfer took place and therefore, the assessee was eligible for deduction u/s 54F(1) of the Act in respect of the said investment out of this deemed long term capital gains. In our considered opinion, the Assessing Officer was not justified in not granting exemption u/s 54F with reference to this investment made by the assessee in computing long term capital gains of the year under consideration.
It cannot be said that all tax planning is illegal/ illegitimate/impermissible. Applying the rationale of this decision to the case on hand, in the absence of any material to pronounce on the genuineness of the transaction herein, the mere fact that what had been purchased had been leased out to the vendor or that vendor had undertaken to pay the hire charges on behalf of the assessee to the hire purchase company, per se, cannot lead to a conclusion that the transaction is a sham one. In the circumstances, even invoking the decision in McDowell case, we do not find any ground to accept the plea of the Revenue that the claim of the assessee has to be rejected as a sham one.
The taxpayer adjusted the interest expenditure against the interest income earned. After such adjustment no interest expenditure remained to be disallowed. The taxpayer offered expenditure other than interest of Rs. 111,521 for disallowance under Section 14A of the Act on the estimated basis. The Kolkata Tribunal held that there was no interest expenditure remaining after adjusting the interest credited to the Profit and Loss Account. Therefore, no part of interest paid can be disallowed for earning tax free dividend. Further, expenditure other than interest had been offered for disallowance by the taxpayer under Section 14A of the Act. Therefore, no further disallowance shall be made.
