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Considering the year during which the amount by way of interest from the trade debtor had been received by the assessee and has been treated as business income, it has to be held as derived from its undertaking, thus making it eligible for deduction under section 80-IC of the Act.
In the result, the substantial question of law framed in ITA No. 1132/2007 is answered in the negative in favour of the Revenue and against the assessee. However, an order of remit is passed directing the Assessing Officer to make a fresh assessment in accordance with law. In ITA No. 583/2010, no substantial question of law arises and it is accordingly dismissed. No costs.
Article 3(2) in most of the Treaties including the India-USA DTAA provides that any term not defined in the Convention shall unless the context otherwise requires, have the meaning which it has under the laws of that State concerning tax to which the Convention applies.
In these appeals filed by the Department, the issue which arises for determination is, whether the expenditure incurred by the assessee during the Accounting Year towards cost of replacement of machinery is an amount paid on account of current repairs allowable under Section 31 of the Income Tax Act, 1961? This issue is squarely covered by the decision of this Court in the case of Saravana Spg. Mills (P.) Ltd. (supra).
It is clear that in the case of Wipro Ltd. (supra), the assessee has contended that the payment was made for subscription for a journal or a magazine of a foreign publisher which is similar to the facts of the case in hand where the assessee has also claimed that the payment is towards subscription to online fashion magazine. The Assessing Officer has held that the payment is towards royalty whereas the Commissioner of Income Tax(Appeals) has straightaway decided the issue by holding that the payment is not for transfer of right to use in the copyright as held by the Tribunal in the case of Wipro Ltd. (supra).
Being a public company, ordinarily, provisions of section 179(1) of the Act cannot be applied. However, if the factors noted by the Assistant Commissioner in his impugned order dated 15.4.2002 and highlighted by us in this judgement are duly established, it would certainly be a fit case where invocation of principle of lifting of corporate veil would be justified.
Held that, In the case of LPG cylinders, the transaction was only a financing transaction and was not a lease as there is no material to show that the assessee became the owner of the cylinders and leased them to Janta; in the case of airjet spindles and positar disc, the very existence of the assets and the genuineness of the purchase of the assets by the assessee was not proved. In both the cases, therefore, the assessee was not entitled to depreciation.
On the facts of the present case, we have noted that there is no finding by any of the authorities below that services are rendered to non-members. There is a reference to the services rendered to the outsiders in the orders of the authorities below, but it is in the context of analysis of judicial precedents, and, therefore, nothing turns on that. As long as services are rendered to the members, even for a remuneration, the same will be covered by the principles of mutuality. As far the allegation that members have deducted at source from payments to the assessee and for this reason, the receipt is to be taken as taxable receipt, it is only elementary that conduct on the part of the person making payment cannot determine character of receipt in the hand of recipient.
Where neither the TPO nor the DRP have found any fault with audited segmental accounts, the Departmental Representative cannot Canvass rejection of the same before the ITAT on the ground that the same one not prepared or audited as per ICAI guidelines.
On perusal of orders of authorities below, we agree that facts and issue involved in Ground No.2 of appeal for assessment year 2009-10 are identical to ground No.2 & 3 of appeal for assessment year 2008-09, which we have discussed in paras 7 to 9 hereinabove. For the reasons mentioned in para 9 hereinabove, we allow Ground No.2 of appeal taken by the assessee for assessment year 2009-10.
