Tribunal by the impugned order followed its order in the matter of WNS North America Inc rendered on 25th November, 2011. The Tribunal while upholding the order of the CIT(A) held that the amount of Rs. 2.93 Crores was received by the Respondent-Assessee as reimbursement of lease line charges and would not classify either as royalty or as income attributed to a Permanent Establishment in India.
Insofar as the absence of any other business or source of income is concerned, first of all, respondents themselves have no case that the petitioner had any other business or source of income. It is also the admitted case of the respondents that the entire properties of the petitioner are under attachment and that the interest liability of the petitioner was satisfied from out of the compensation amount remitted by the Corporation of Cochin. These facts, in my view, prima facie substantiate the case of the petitioner that he had no business or source of income and that payment of interest as demanded, would cause genuine hardship.
Absence of an appeal does not necessarily render the legislation unreasonable as only because no appeal is provided under the Act against the order passed under section 14 of the Securitisation Act will not render section 14 ultra vires the provisions of the Constitution of India.
We agree with the view taken by the Tribunal; and the appeal is devoid of any merits. Both the substantial questions raised by the appellant do not involve any substantial question of law and therefore, the appeal is dismissed.
Insofar as question (b) is concerned, it becomes academic as if the eight comparables selected by the TPO are found not to be functionally comparable then the difference between the operating margin of the respondent at 15.05% as against the 18.97% of comparable companies being within the range of +/ – 5% the amounts received by the respondent – assessee is within the statutory limits. Therefore, we see no reason to entertain question (b).
On 27 July, 2009, Notification No.24/2009-Service Tax, the Central Government in the Ministry of Finance issued a Notification under section 93(1) of the Finance Act, 1994 exempting the Notification No.24/2009-Service Tax taxable service referred to in section 65(105)(zzg) provided to any person by any other person in relation to management, maintenance or repair of roads, from the whole of the service tax leviable thereon. The earlier Notification was amended on 21 January, 2010 to expand the scope of the exemption to cover, inter alia, the management, maintenance or repair of roads, bridges, tunnels, dams, airports, railways and transport terminals.
The argument of the learned counsel for the respondent-assessee that merely participation of the assessee will not validate the reassessment proceeding if the notice is invalid, is of no help, in view of the fact that the question of validity of notice under Section 147 of the Act is not in issue. The only defect which could be pointed out is that the assessment year was not mentioned in the reasons recorded by the Assessing Officer.
There is another aspect of the matter. The purport of unearned increase is to, in addition to the premium charged by the appellant DDA at the time of granting the lease, entitle the appellant DDA to share 50% of the increase in value of the leasehold rights from the date when the lease was given and till the date of transfer. The transfer of the leasehold rights in the present case, as aforesaid, is under the aegis of this Court. There is no doubt as to the consideration for the said transfer. It is not in dispute that the matter has throughout been pending in this Court on the issue of unearned increase. We are of the opinion that it would be highly unjust and unfair to ask the respondent M/s Aeroshine who though has purchased the leasehold rights at the rates of the year 1983-85, to pay unearned increase to the appellant DDA of the year 2004 or of today.
The key words used in Section 40(a)(ia), according to us, are on which tax is deductible at source under Chapter XVII –B. If the question is which expenses are sought to be disallowed? The answer is bound to be “those expenses on which tax is deductible at source under Chapter XVII –B.
Moreover, this Appeal is filed from an order rejecting a Misc. Application for rectification. An appeal from an order dismissing a Misc. Application for rectification is not maintainable as held by this Court in the matter of Chem Amit v/s. ACIT reported in 272 ITR 397.
