S. 260A permits the filing of an appeal to the High Court within 120 days. In CIT vs. Velingkar Brothers 289 ITR 382 (Bom) (FB), The Full Bench held that the Court had power to condone delay u/s 260A. However, in Hongo India 236 E.L.T. 417 and Chaudharana Steels 238 E.L.T. 705, the Supreme Court held in the context of sections 35H & 35G
There are no two opinions that but for the addition of sub-section [4] in section 115JA of the Act and which was conspicuously absent in section 115J of the Act, the ruling of this court and the reasoning and ratio mentioned in KWALITY BISCUITS* case (supraj would conclusively govern the question as the Judgment of this court had come to be affirmed by the Supreme Court in an appeal preferred by the revenue, though by simply dismissing the appeal without any reasons but granting leave and converting the special leave petition into an appeal.
So far as the contention with regard to the disallowing the claim on the expenditure incurred on the purchase of two machineries is concerned, the counsel for the Revenue has urged that though with respect to the first machinery an advance payment was made within the Assessment year, with respect to the second machinery no payment at all was made.
Whether the Tribunal was correct in holding that the assessee is not liable to deduct TDS in respect of payments made for purchase of software as the same cannot be treated as income liable to tax in India as Royalty or Scientific Work under section 9 of the Act read with Double Taxation Avoidance Agreements and treaties. Not correct, in the negative, against the assessee and in favour of the revenue
Simply because some incidental activity of the assessee is revenue generating, does not provide any justification to hold that it is tainted with “commerciality” and reaches a point where relationship of mutuality ends and that of trading begins.
The assessee made payments to a foreign company for purchase of ‘shrink-wrapped’/ready-made software without deduction of tax at source u/s 195 (1). The AO held that the payments were chargeable to tax in the hands of the foreign company as “royalty” u/s 9 (1) (vi) and that the assessee was liable u/s 201 for non-deduction of tax and interest thereon.
The fact involved in the present case is that the assessee is a branch of Samsung Electronics Co Company Limited, Korea, engaged in the development, manufacture and export of software for use by its parent company, i.e., Samsung Electronics Co., Ltd., Korea. The assessee develops various kinds of software for telecommunication system for office appliances, for computer systems and for mobile devices etc.,. The software developed by the assessee is for in-house use by the parent company.
This article summarizes a recent ruling of the Karnataka High Court (HC) [ITA No. 2808 of 2005] in the case of Samsung Electronics and others (Taxpayers). The HC held that any payment resulting in any income in the hands of a non-resident would be subject to withholding tax under the Indian Tax Law (ITL). Unless an order is obtained from the Tax Authority for withholding tax at a lower rate or for not withholding tax, a taxpayer would need to withhold tax on the income at the applicable withholding tax rates, even if the income may not be taxable in the hands of the non-resident.
In all the appeals before us, the specific case of the assesses is that the BSE card acquired by them on or after 1/4/1998 is an intangible asset covered under the expression ‘licences’ or alternatively covered under the expression ‘any other business or commercial rights of similar nature’ enumerated in section 32(1)(ii) of the Act and therefore, depreciation is allowable on the BSE card acquired by them.
CIT Vs. Db (India) Securities Ltd. (Delhi High Court) The assessee, a broker, purchased shares of the value of Rs.1,06,10,247 on behalf of its sub-broker. The sub-broker made payment of Rs.64 lakhs. As the remaining amount of Rs.41,37,881 was not paid, the assessee did not deliver those shares to the client though it offered the brokerage to tax.
