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it is well settled that even if an issue is brought to the notice of the Assessing Officer by the audit party, it would not preclude the Assessing Officer from acting on such communication as long as the final opinion to take appropriate action is that of the Assessing Officer and not that of the audit party. Referring to the decision in case of CIT v. P.V.S Beedies (P.) Ltd. [1999] 237 ITR 13, it is equally well settled however that if the Assessing Officer has acted only under compulsion of the audit party and not independently, the action of re-opening would be vitiated.
This year’s budget has brought in certain proposals which could impact your decision to buy (or sell) a property in the new financial year – both in direct taxes and indirect taxes.
In our opinion, the assessee himself having taken these two non-related parties as comparables in its TP study, it cannot now turn back and say that one of the parties is not comparable without giving any cogent or convincing reason. The only reason given by the assessee in this regard is that the use of technology availed from Dupont has restricted application. It is, however, observed from the relevant figures that the domestic sales generated by the assessee using the technology of Dupont is quite comparable with the domestic sales generated from the use of technology of its AE Kansai Japan. There is thus no merit in the stand of the assessee that Depont is not a comparable case with Kansai Japan.
The hon’ble Ahmedabad Income-tax Appellate Tribunal in the case of Well Pack Packaging v. Deputy CIT reported at [2003] 78 TTJ (Ahd) 448 has held that revaluation of depreciable assets and conversion of a partnership firm into company does not lead to incidence of capital gain inasmuch as revaluation is made in the hands of the assessee by writing up the value of assets in the books. In view of the provisions of sections 575, 576 and 577 of the Companies Act, 1956, there is no transfer involved when a company got itself registered under Part IX of the Companies Act. In view of this, there is no question of applicability of the provision of section 45 or 50 or any other provisions of the Income-tax Act arise on conversion of a firm into company.
From the fact that the income of the society comprised of receipts from the activity of letting out a kalyana mantapa owned by it on rent, fees received from the members on sale of liquor in the bar run by the assesse, it does not follow that the activities of the Assessee are not genuine or that the activities are not being carried out in accordance with the objects of the Assessee.
The other point considered by the authorities below marring the benefit u/s 72A(1) is that the assessee company failed to lead evidence that the amalgamation was to ensure the revival of the business of the amalgamating company. Objections of the AO in points nos. (iii) and (iv) of para 3 of this order about the violation of the conditions prescribed in Rule 9C are also related to this very aspect of the matter. The case of the AO is that the assessee failed to substantiate the steps taken by it to revive business of BTPU and further it did not satisfy the twin conditions as per rule 9C, being, achieving the stipulated level of production of at least fifty percent of the installed capacity of BTPU and furnishing certificate in Form no. 62.
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After considering the rival submissions and perusing the relevant material on record it is observed that the due date for filing the return of income by the assessee under section 139(1) for the relevant year is 30.11.2006. The AO has drawn a chart at page-4 of the assessment order showing the dates of actual deposits and due dates for the said contributions of EPF and ESIC.
A perusal of the assessment order clearly shows that Smt. Madhumita Paul, had been summoned under section 131 of the Act and her statements have been recorded. It is shown in the statements recorded that Smt. Madhumita Paul did do work at the business premises of the assessee firm.
Assessee, in fact, was enjoying possession of the impugned property and for peaceful vacation thereof it had received the impugned amount which was described by both parties as amount paid for surrender of tenancy rights. The assessee had acquired the said right long back and the licensor to the assessee also had recognised the said right of the assessee.
