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Vide Notification No. 36 of 2012, in exercise of the powers conferred by sub-section (9) of section 92CC read with section 295 of the Income-tax Act, 1961 (43 of 1961), the Central Board of Direct Taxes releases Advance Pricing Agreement Scheme. The advance pricing agreement scheme shall be governed by Rules 10F to Rule 10T.
The consultancy charges had been paid by the assessee in providing technical services regarding the patents, obtaining patent information from innovator companies and obtaining innovator samples for research and development purposes. The payments have been accepted towards research and not towards registering the patents.
The Standing Committee on Finance has presented its report on Current Economic Situation and Policy Options to Parliament on August 30, 2012. The Committee has inter alia found that the investment climate in the country has suffered serious setback and investors confidence has been hit mainly because of the concerns over the impact of retrospective tax laws and new General Anti Avoidance Rules (GAAR).
Observation of the Assessing Officer that since the land was not cultivated by the assessee himself and was carried on by the brother, therefore, it cannot be treated as agricultural land. We are not absolutely convinced by this argument/observation because there is no requirement in any Act more especially the Income Tax Act that only the self cultivated land will be treated as agricultural land.
According to Explanation 10 and proviso to sub-section (1) of section 43, the subsidy amount shall be deducted in the actual cost of the asset of the assessee. Thus, the contention of the assessee that the subsidy received towards the power generation plant would not be reduced from the actual cost of the assets was not correct.
The Ministry of Finance has notified an “Advance Pricing Agreement Scheme” (Rules 10F to 10T of Income Tax Rules, 1962) vide notification No. 36/2012 dated 30-8-2012. The Finance Act, 2012 had inserted sections 92CC and 92CD in the Income Tax Act 1961 introducing the provisions of Advance Pricing Agreement (APA). The APA Scheme shall come into effect from the date of its publication in the Official Gazette, i.e. from 30.08.2012.
Admittedly, the assessee has not served for the period of five years. The assessee has not rendered enough services to warrant emoluments of Rs. 1,21,83,494. It is assessee’s submission that during the year under consideration he has not created a debt or a right to receive the payment equivalent to Rs. 1,21,83,494. Hence, it cannot be said that the income equivalent to total emolument of Rs. 1,21,83,494 has accrued to the assessee.
In the instant case, it was noticed that the agreement clearly stated that the owner would continue to be in possession of the scheduled property till such time the developer completes the construction of the said complex and delivers their areas infra. In the instant case, nothing was brought on record to substantiate that the possession of the land was delivered to the developer or the land was not in assessee’s possession.
