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Whether the exemption u/s 54 will be available, in case, capital gain arising from sale of more than one residential house, is invested in one residential house. The ld. counsel appearing for the assessee argued that there was no restriction under section 54 that capital gain arising from two residential houses cannot be invested in one residential house. We find substance in the argument advanced by the Id. counsel for the assessee.
The assessee is getting twin benefit from the employer, one of which is not taxed on the basis of reimbursement of rent by the assessee to the employer. The first benefit is of rent free accommodation provided by the employer to the assessee employee for which the employer is incurring rental expenditure of Rs. 1.70 lacs per month in addition to providing interest free deposit of Rs. 40 lacs with the land lord. The 2nd benefit being received by the assessee is this that he is getting HRA of Rs.3 lacs approximately per month including special HRA of Rs.1.70 lacs per month.
The assessee had also challenged that in the assessment order the AO has not recorded finding that there was concealment of income. He has placed reliance on the decision of Hon’ble Delhi High Court in the case of Madhu Shree Gupta while examining the constitutional validity of sub-sec.1B of section 271(1)(c) has held that the presence of prima facie satisfaction for initiation of penalty proceedings was and remains a jurisdictional fact which cannot be wished away as the provision stands even today, i.e., post-amendment.
Assessee having constructed the building and invested the capital gain, the assessee is entitled for deduction u/s. 54F of the Act if other conditions discussed herein below are fulfilled.
The Assessing Officer had considered that a common shareholder ‘P’ has substantial shareholding of more than 10 per cent. While analyzing substantial interest, the Assessing Officer has only considered Explanation 3 with reference to a person having beneficial interest entitled to not less than 20 per cent of income of such concern so as to attract provisions of section 2(22)(e). However, the Assessing Officer has not examined definition given in section 2(32) with reference to company which has a substantial interest in company, wherein it was specifically mentioned of carrying not less than 20 per cent of voting power. Admittedly, ‘P’ has less than 20 per cent shareholding in both companies, i.e., assessee as well as ‘A’. Therefore, reasoning given by Assessing Officer of a common shareholding by ‘P’ does not hold good. Further, it is an admitted fact that assessee is not owning any share in ‘A’ and provisions of section 2(22)(e) do not apply unless assessee is a shareholder in the company. For both the reasons, the order passed by the Commissioner (Appeals) was to be upheld.
Corpus fund is the property of the Trust. The donors contributed the donations therefore could not form part of the income & expenditure account as prescribed by law. The development fees received later on was from students was to be identified by the assessee over and above the corpus funds when the students were made aware that they are contributing the amount apart from development fees, tuition fees, bus fees and other annual charges.
RL is a tax resident of Mauritius and in support of this, tax residency certificate has been furnished. This fact has also been accepted by the learned DR in the written submission. It is also undisputed fact that, based on this tax residency certificate, the RL has applied for exemption certificate for grant of 100% DIT relief, which was granted by the Assessing Officer vide certificate dated 9-6-2000 upto the period of 31-3-2001 i.e. upto AY 2001-2002 (copy of which has been placed in the assessee’s paper book at page 5 filed on 8-11-2009). It was based on this certificate, that the assessee had sought tax relief in the return of income.
The argument that unless the capital gain is actually taxed in Mauritius the DTAC would not apply in the context of section 90(1) and section 90(2) of the Act, though attractive, cannot be entertained in view of the decision in Union of India vs. Azadi Bachao Andolan. Even though capital gain is not actually taxed in Mauritius, the question raised is seen to be concluded by the decision in Union of India vs. Azadi Bachao Andolan. If it wants to, it is for the revenue to canvass the question before the Supreme Court. This Authority is bound by that decision. Here, the assets proposed to be transferred come under paragraph 4 of Article 13 of the DTAC between India and Mauritius. The applicant being a tax resident of Mauritius in the light of the tax residency certificate produced by it, going by the decision in Union of India vs. Azadi Bachao Andolan, it has to be held that the gain that may arise to the applicant is not chargeable to tax in India.
Whether on facts and circumstances of the case and in law, the ITAT was justified in deleting the disallowance made of royalty paid by the respondent to CAMI USA for distribution of software products in India without appreciating that the royalty had been paid on the amount of bad debts even where the software had not worked at all?”
Section 80HH states that an industrial undertaking has to begin manufacture or production in a backward area. Mere intention to begin manufacture or production and making investment would not suffice for that purpose. There has to be actual manufacture or production. Hon’ble Apex Court in the case of CCE v. Hari Chand Shri Gopal [2011] 1 SCC 236 unequivocally held that provision providing exemption, concession or exceptions in a fiscal statute has to be interpreted strictly.
