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It is seen from the material on record that there is no contract of employment between the assessee-company and non-whole time directors. They were also not paid any fixed remuneration. The Board’s resolution dated May 15, 2002, which has been extracted in the impugned order of the Commissioner of Income-tax (Appeals) provides for payment of remuneration/ commission not exceeding one per cent.
The Assessing Officer has been entrusted the role of an investigator, prosecutor as well as adjudicator under the scheme of the Income-tax Act. If he commits an error while discharging the aforesaid roles and consequently passes an erroneous order causing prejudice either to the assessee or to the State Exchequer or to both, the order so passed by him is liable to be corrected.
There was no enquiry by the Assessing Officer on the issues raised by the CIT in his order u/s. 263 of the Act. The lack of enquiry or inadequate enquiry by the Assessing Officer could be very much reason for assuming jurisdiction u/s. 263 of the Act.
ITAT has chosen to disregard the plea of the Revenue for further investigation into the matter though there was sufficient material, which was referred to by the Assessing Officer, to suspect the motives of the assesses in claiming such huge expenditure by way of interest under Section 57(iii) of the Act.
While making assessment of any returns any deduction is sought for it is the duty of the revenue official to examine not only the account but also substantive right of claiming deduction under the Act on the facts and circumstances of this case. It is not a case that the said assets and properties do not belong to the appellant, therefore depreciation in any assets and properties is a regular phenomenon and deduction on this account is allowable under Section 32 automatically.
The assessee must prove beyond the shadow of the doubt there existed a reasonable cause for not complying with the conditions contained in section 269SS of the Act. Circumstances under which the cash was accepted must be explained. Unfortunately no cogent material was produced in that direction.
It is a fact on record that the assessee has adopted the CUP method for computing the Arms’ Length Price for the international transaction entered into by it with its AE for the medical transcription service rendered by it to the AE. In this regard, the assessee has considered two external comparables and three internal comparables.
Section 11(1) provides subject to the provisions of section 60 to 63, the income which is derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India; and, where any such income is accumulated or set apart for application to such purposes in India,
In the present case, the expenditure is incurred for the purpose of sub-division of the shares. However, we do not see how the observations made by the Apex Court in the ratio laid down in case of General Insurance Corporation (supra) can be distinguished in view of such difference in facts. In case of sub-division of the shares also, there is no increase in the share capital of the company.
In the case of Harley Street Pharmaceuticals Ltd. (supra) it has been held that provisions of Sec.50C are applicable only for computation of capital gains in real estate transaction in respect of seller only and not for the purchaser. Legal fiction cannot be extended any further and has to be limited to the area for which it is created.
