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1. That part of the enhancement of lease rent, which is attributable to Mehta Charitable Trust surrendering its right to purchase khair wood in favour of the assessee company constitutes revenue expenditure. 2. That part of the enhancement of lease rent, which is attributable to improvement and modernization of plant and machinery carried out by the Trust in the year 1989-90, constitutes revenue expenditure. 3. The enhancement in lease rent, if any, which is attributable to normal appreciation, if any, in line with the lease rentals prevailing in the market constitutes revenue expenditure.
Yet another issue involved in this appeal is as to whether the capital gain tax, in this case, would be leviable at the normal rate of 20% or at the rate of 10%. Admittedly, capital gain tax at the rate of 10% was payable only in case of ‘listed securities’. Since, these shares had been transferred to the applicants in the public offer, by 5.1.2006 before they were actually listed on the stock exchanges on 6.1.2006, they were not ‘listed securities’ at the time of sale by the appellant and consequently, the transaction would not be eligible for payment of capital gain tax at the lower rate of 10%.
Land in question was declared surplus land under the Urban Land [Ceiling & Regulation] Act, 1976 which was having depressing effect on the value of the asset, the valuation had to be made on the basis of assumption that the purchaser would be able to enjoy the property as the holder, but with restrictions and prohibitions contained in the ULC Act and in such case value of the property or land would be reduced.
Hon’ble Supreme Court in the case of CIT v. Alagendran Finance Ltd. [2007] 293 ITR 1/162 Taxman 465, has considered the period of limitation for the purpose of section 263 in a case where a series of orders were passed by the assessing authority in the case of that assessee. The Hon’ble Supreme Court held that the period of limitation commenced from the date of the original assessment order, in which the issues sought to be revised by the Commissioner of Income-tax, have been discussed. The Hon’ble Supreme Court held that the subsequent orders passed by the lower authorities on different dates cannot be relied on by the Commissioner of Income-tax for reckoning the period of limitation. It is, therefore, necessary to see that for the purpose of computing the period of limitation, the date of that order is to be considered in which the disputed issues have been considered by the lower authorities, at the latest. The Hon’ble Supreme Court has held that the period of limitation begins from the original assessment in respect of those items.
When the assessee is not in the business of leasing out of the property and the intention of letting out the premises in question was not to exploit the business assets in relation to the business of the assessee then the said property would not fall under the exception as provided u/s 2(ea)(i)(5) of the W T Act being commercial establishment or complex.
The Assessee’s claim for deduction u/s.80-IB(10) of the Act for AY 2009-10, in so far as it relates to the profit derived from developing housing project, cannot be regarded as income of a charitable trust or institution within the meaning of Sec.11(1)(a) of the Act, because carrying on of the housing project was not a charitable purpose even in AY 2009-10 in view of the first proviso to Section 2(15) of the Act. The income from developing housing project by virtue of the provisions of Sec.13(8) of the Act would become part of the total income under the Act.
In the instant case, Amish Kumar Patel in his statement under Section 131 of the IT Act has nowhere said that the money in question belonged to the petitioner’s firm or was to be delivered to it. Instead, he has stated that the money in question was handed over to him by Praveen Bhai who was found untraceable at the address provided by Amish Kumar. This being so, the petitioners do not get any advantage of Vindhya Metal Corpn.’s case (supra), being distinguishable on facts.
When a notification is issued exercising the powers conferred under sub-section (3) of Section 90A of the Act, it can have effect only on those types of agreement mentioned in sub-section (1) thereof. If such a notification goes beyond that mandate, it will have to be ignored to the extent it goes overboard. Even if the term may be taxed has been given a meaning by the Government through a Notification No. 90A(3) of the Act, so as to extend such meaning to terms used in a Double Taxation Avoidance Agreement, it will have to be ignored.
From decision in case of CGG Veritas Services, SA (supra) it is clear that (i) fee for technical services having business PE or fixed place of profession will be assessable under section 44DA, (ii) fee for technical services without having business PE or fixed place of profession will be assessable under section 115A. The Tribunal has further held that fee for technical services from assessment year 2011-12, whether rendered in connection with prospecting for or extraction or production of mineral oil, will be assessable either under section 44DA or under section 115 depending upon the fact whether such receipts are effectively connected with PE or fixed place of profession or not.
We may also notice that the proviso to Section 147 of the Act is fully applicable as the assessee had disclosed all the materials facts at the time of original assessment. Even if the materials/evidence was not enclosed with the return, full and true details/material was disclosed during the course of the original proceedings. The turnover or sales made to DMRC has not been disputed.
