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Having regard to the facts noted above as well as explanation adduced by the assessee in respect of the payments and the suspicious approach of the DGIT(E) towards the evidence adduced by the assessee without noticing the crucial facts such as payment by cheques etc., it seems that the DGIT(E) was not justified in law in readily inferring that assessee manipulated and fabricated its books of account and vouchers and also debited personal, bogus and exaggerated expenses.
As explained by assessee, the income could not be offered as assessee sought approval under section 10(23G) as early as of 24-8-2005 which was followed with reminder letter addressed to the CCIT on 17-1-2006. Since the application was made in form No. 56E, it is natural that the Board will either accept or reject the application in a reasonable period of time. As on 1-11-2006 assessee has not been communicated by the result of the application, even though it was following it up.
In the light of the above discussions, the admitted facts of the case under consideration are that during the year under consideration share holding of the company has changed by more than 51% and management and control of the company has been passed on to Pippal family.
During the course of the proceedings before the Tribunal the revenue contended that the borrowings on which the interest has been claimed as a deduction are in fact capital of the assessee and brought only under the nomenclature of loan for tax consideration. It was the case of the appellant-revenue before the Tribunal that debt capital is required to be re-characterized as equity capital.
In the present case, therefore, the fact that the assessee had completed the construction well before 31st March, 2008 is not in doubt. It is, of course, true that formally BU permission was not granted by the Municipal Authority by such date. It is equally true that explanation to clause (a) to section 80-IB(10) links the completion of the construction to the BU permission being granted by the local authority.
In order to determine whether the payment is not sustainable, the Assessing Officer has to first return a finding that the payment made is excessive under section 40A (2). If it is found to be so, then the Assessing Officer has to determine what constitutes the fair market value of the services rendered and disallow the difference between what is claimed and what is such value determined (as fair market value).
Section-132B(4) cannot be construed or interpreted in a manner as to defeat the rights of the assessee/writ petitioner to the property itself. The fact that it limits the liability to the point of time when assessment is completed would mean that authorities have to be alive of this fact and release the amount within reasonable time.
In the instant case, the AO did not dispute the genuineness of the transaction entered into between the assessee and Samajwadi Party and no addition had been made in this regard. Instead of cash, if the assessee had taken loan through cheque, it would have taken some time for process in clearing. Since the amount was deposited and withdrawn from bank on the same day for making cash payment to the Nazul Authority, there could be no reason to doubt the bona fide of the assessee.
Section 9 does not seek to bring into the tax net the profits of a non-resident which cannot reasonably be attributed to operations carried out in India. Even if there be a business connection in India, the whole of the profit accruing or arising from the business connection is not deemed to accrue or arise in India. It is only that portion of the profit which can reasonably be attributed to the operations of the business carried out in India, which is liable to income-tax.
In the present system of e-filing of return which is totally depended upon the usage of software, It is possible that some clerical errors may occur at the time of entering the data in the electronic form. The return is prepared electronically which is converted into an XML file either through the free down loaded software provided by the CBDT or by the softwares available in the market.
