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Expenses having been incurred for the IPO through which assessees were also able to sell their shares, the expenses necessarily were, in our opinion, in connection with sale of such shares. Assessees could take advantage of clause (1) of Section 48 of the Act. Assessees had produced evidence in the form of Escrow Account to show that it had received only net amount after incurring the expenses. Assessees also produced Prospectus of IPO which clearly shows that they were obliged to meet pro rata share of IPO expenses. There is no case for the Revenue that any of the assessees claimed more than their share of expenses based on the ratio of shares sold. We are, therefore, of the opinion that the deduction claimed by the assessees for expenses incurred was unjustly disallowed. This disallowance is deleted.
In terms of section 9(1)(ii) income chargeable under the head “salaries” under section 15 shall be deemed to accrue or arise in India if it is earned in India, i.e., if the services under the agreement of employment are or were rendered in India. In the instant case, the employment services were entirely rendered outside India. Hence, the salary is not earned for rendering services in India. Therefore, salary for the entire year is not taxable.
From the above circular, it would be clear that the amendment bringing self generated intangible assets such as trademark to capital gains tax only with effect from Assessments Year 2002-03 onwards. In this case, we are concerned with Assessment Year 1999-2000 and therefore, the amendment would not have any effect.
If cost of asset not doubted in earlier years, it can’t be held as sham if sold to parent co. at nil profit Transfer of shares held as investments by subsidiary to overseas parent co. at cost of acquisition is not a sham nor colourable device
The assessee has been rendering income from the business and the failure on the part of the taxing authorities to have discovered undisclosed income on the basis of search carried out cannot be finalized for the purpose of satisfying the search operation by estimating a meager higher amount as rate of return of NP which NP rate is variable on the basis of claim of expenditure allowable u/ss.30 to 37 of the I.T. Act.
We find that when a person was allowed to act as sub broker, he was initially allowed to issue even a contract note to his clients. Moreover, such sub broker could receive payments from clients and make payments to clients from his accounts. This position was changed vide Circular No. 9 (SEBI/MRD/MIRSD/DPS-1/CIR-31/2004) dated 26th August, 2004 as noted by the AO. But by this change assessee could still act as a remisier and the only restriction is that now he cannot issue the contract note for any transaction which has to be issued by the main broker. Even the payments were to be received and made by the main broker. However, assessee still remained entitled to his commission which was to be shared by the main broker with such remisier. Therefore, the assessee even after the change of regulation could have still acted and could have shared the commission with the main broker i.e. Sharekhan or he could have changed his broker or even he could have himself become a member of the stock exchange because he had a large client basis. Simply because assessee preferred to sell his business along with tangible assets would not mean that the agreement would become that of an agency. It still remained an agreement between a principal to principal. Therefore, in our opinion, it is a clear case of sale of assets and the Ld. CIT(A) has correctly decided the issue and accordingly we confirm his order.
There was no fresh tangible material before the Assessing Officer to reach a reasonable belief that the income liable to tax has escaped assessment. The order passed originally on 29th March 2005 under Section 143(3) of the said Act was passed after the respondent had made adhoc claim for expenditure at 30% of the professional receipts in the revised return of income which was later withdrawn. In fact the reasons for reopening the assessment for the year 2002-03 itself records that the the claim of 30% adhoc expenses was withdrawn when the respondent assessee was asked to substantiate the claim.
Claim for deduction under Section 80IB cannot be denied in this year based on the findings given by the Assessing Officer or by the virtue of surrender of claim before the Assessing Officer. It is a duty casts upon the Assessing Officer or to the appellate court to see that if a deduction or a claim for exemption is statutory allowable, then the same has to be allowed, if the assessee fulfils the prescribed conditions required under the statute.
In the instant case, the property in question is residential house, which has not been let out or used for the purpose other than residential. Therefore, even though the assessee did not stay in the house so long, this house is exclusively for residential purpose. Therefore, the conditions as enumerated in the third proviso to rule 3 are satisfied.
In this case, the right to receive the brokerage and commission always remained outside India and what was received by the assessee in his Indian bank account is a subsequent remittance of funds from foreign accounts to Indian accounts. As far as the assessee is concerned, the right to receive the income did not arise in India.
