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The applicant approached this Authority with the present application seeking an Advance Ruling on a plea that all the agreements relating to this transaction were negotiated and concluded outside India. It takes the stand, that the loan having been guaranteed by EKN, the interest paid under the transaction is not liable to charge to tax in India under the Income-tax Act in view of Article 11.3 of the Double Taxation Avoidance Convention between India and Sweden. While allowing the application under section 245R(2) of the Act, this Authority framed the following questions for the ruling:
We had occasion to consider the ruling in Dassault, the ruling in P.No.30 of 1999 in re.(AAR/821/2009) of this Authority, the other relevant rulings and the ruling in Millenium, in our recent ruling in Citrix Systems Asia Pacific Pty. Ltd. (AAR/822 of 2009). Therein we have held that there cannot be a user of software over which exists a copyright without a use of the copyright therein. The payment for such use can only be royalty. We have also held that what is paid by a seller on behalf of the customer and what is paid by the customer direct, both partake the character of royalty. In the light of that Ruling, it does not appear to be necessary to further reason out the issue. We adopt the reasons given by us in the Citrix Ruling to find that what is paid by the reseller to the applicant and what is paid for updates and maintenance are royalty and not business income.
The appellate authorities have taken the view, and do not appear unjustified in doing so, that with the basic facts having been divulged and established by the assessee with furnishing of necessary details, it was for the Assessing Officer to establish that the details were false or incorrect and the additions could not have been made merely on generalized observations or on suspicion. In an overall view of the matter, it is found that the finding of facts have been rendered by the appellate authorities on the relevant considerations after due examination of record and do not appear suffering from perversity.
A Parliamentary panel scrutinising the Direct Taxes Code – DTC Bill has suggested raising the income tax exemption limit to 3 lakh rupees from the present 1.8 lakhs. It has also suggested hiking of deduction on savings to 2.5 lakh rupees.
The new software, which allows taxpayers to access details of his ITR on smart phone, is being developed with the help of TCS. The new service will be part of the upgraded online return filing portal which will be launched in the next couple of months. The department already hosts services like viewing of tax credits, Annual Information Return (AIR), Tax Deducted at Source (TDS) status, various tax related forms and Tax Return Preparer Scheme (TRPS).
Income Tax Department filed an appeal u/s 260A in 2006 where the tax effect was less than Rs. 10 lakhs. High Court, relying on Instruction No. 3/2011 Dated 9-2-2011 dismissed the appeal as not maintainable. Income Tax Department challenged the decision on the ground that para 11 of Instruction No. 3/2011 Dated 9-2-2011 made it clear that it would apply only to appeals filed on or after 9.2.2011 and not to appeals filed earlier.
We have heard both the sides, considered the material on record and find that Assessing Officer made the impugned addition and CIT(A) confirmed the same, but inadvertently mentioned about addition of Rs. 90,000/- instead of Rs. 1,50,000. Since addition is on estimate basis and assessee has also given some basis for low withdrawals such as getting facilities from employer, free of cost etc, therefore, assessee deserves part relief. As such, we are of the view that it would meet the ends of justice, if the addition made and confirmed by the CIT(A) is restricted to Rs.90,000/- instead of Rs.1,50,000/-. So, assessee gets relief of Rs.60,000/-.
The assessee has shown long term capital gains and short term capital gains on buying and selling of shares and mutual funds, but, the revenue treated the same as business income based on the claim of the assessee in AY 2004-05 as trading activity of the said transactions. The only dispute between the assessee and revenue is that whether the assessee’s claim of treating the income arising out of selling and buying of shares out of the capital gains is correct or treating the said income is a trading activity as held by the revenue based on the decision in AY 2004-05 is correct.
It has been observed by the AO that waiver of ‘term loan’ is not trading liability, expenditure or loss as envisaged under section 41(1) of the Act. In other words, he has not invoked the provision of section 41(1) of the Act but treated the waiver of principle of amount of ‘term loan’ chargeable to tax under the head ‘income from other sources’
In this judgment HC held that CBDT’s Instruction No. 3 of 2011 dated 9.2.2011 applies to appeal filed before the issue of instruction also and all appeal pending on the date of instruction before High Court in which tax effect does not exceed the monetary limits of Rs. 10 Lakh for filing appeal by Income Tax Department can be held as non Maintainable. High Court has held as follows:-
