In the present case, the wording of Clause 7.1 of the lease reflects the intention of the parties that it is the Petitioner who would bear the incidence of all taxes. In light of the decisions in Numaligarh Refinery Ltd. v. Daelim Industrial Co. Ltd. and Rashtriya Ispat Nigam Ltd. v. M/s. Dewan Chand Ram Saran, the view of the learned Arbitrator that in terms of Clause 7.1 of the lease deed, the service tax liability is that of the service provider, i.e. the Petitioner, is a plausible one.
Premier Mills Limited merely used the assessee firm as a special vehicle for the purpose of achieving, what it would not be possible for it to achieve in a legal way. It was found that as Premier Mills Limited could not purchase its own shares and in order to circumvent Section 77 of the Companies Act, it decided to repurchase the shares through the assessee herein, which subsequently sold the same to the sister concern, wherein the spouse of Managing Director of Premier Mills Limited was a Managing Director of the sister concern.
Although there is no automatic closure or quashing of the criminal complaint, in the event, there is a favourable verdict in the departmental or the adjudicatory proceedings in favour of an accused but in case the adjudicatory proceedings culminate into a favourable order in favour of the accused on merits and the criminal complaint is in sum and substance based on the same facts then, obviously the Apex Court has observed that it would be a gross abuse of the processes of law to continue with the criminal complaint.
The Gujarat High Court in CIT v. Claris Lifesciences Ltd. [2010] 326 ITR 251/[2008] 174 Taxman 113 detailed in no uncertain terms that the cut-off date mentioned in the certificate issued by the DSIR would be of no relevance. What is to be seen is that the assessee was indulging in R&D activity and had incurred the expenditure thereupon. Once a certificate by DSIR is issued, that would be sufficient to hold that the assessee fulfils the conditions laid down in section 35(2AB).
In view of Hon’ble Supreme Court judgments in various cases the service tax liability on any taxable service provided by a non resident or a person located outside India, to a recipient in India, would arise w.e.f. 18.4.2006, i.e., the date of enactment of section 66A of the Finance Act, 1994. The Board has accepted this position. Accordingly, the instruction F No. 275/7/2010- CX8A, dated 30.6.2010 stands rescinded.
The first issue being: the treatment to be accorded to expenditure incurred by the assessee on purchase of software applications. These applications being: MS Office Software, Anti Virus software, Lotus Notes Software and Message Exchange applications. The assessee in respect of these applications acquired a licence to use the said applications on payment of consideration. The said expenditure has been disallowed by the Assessing Officer in each of the assessment years by treating the expenditure as one incurred on capital account. Accordingly, depreciation at the rate of 25% was allowed to the assessee.
Supreme Court in the case of CIT v. Mir Mohammed Ali [1964] 53 ITR 165 had considered the meaning of the word ‘machinery’ and pointed out that the word is not a technical term and in the absence of any definition under the Act, ordinary meaning would prevail. Indeed rule 8 of the Income-tax Rules treats aero-engines separately from aircraft, but this cannot be used to interpret the clauses in the Act that what was purchased and installed was machinery and after installation, a wider meaning has to be given to the said term.
Normally, transportation is after or post manufacture. The onus was on the assessee to show and establish that, because of the peculiarity of facts, transportation charges should be treated as sale proceeds or part of sale proceeds of the goods manufactured and were intrinsically connected and had live link with the manufacturing activity. In the absence of aforesaid evidence and material placed by the assessee, the transportation charges cannot be treated as profit and gain derived from the manufacturing activity, which qualifies for deduction under section 80-I.
The assessee, while filing her initial return of income, disclosed her income to be Rs. 1.34 lakhs in the relevant assessment year and the said return finds mention of receiving gift of Rs. 2.50 lakhs from ‘A’. In the revised return the said amount of gift was declared as part of her income. Thus, there was no concealment in respect of above amount in filing the return. She further surrendered a sum of Rs. 2.50 lakhs as additional income which was also received by her as gift from one ‘U’. In this manner her taxable income was computed to be Rs. 6.34 lakhs by adding the aforesaid two amounts of Rs. 2.50 lakhs each as finally disclosed.
In our considered opinion the order passed by the Assessing Officer shows complete non application of mind. He has not discussed as to what was the difference between the value estimated by the departmental valuer as also given by the assessee’s valuer and what was the reason for determining the income at such a low figure. The Commissioner was therefore, perfectly justified in setting aside the assessment in exercise of powers under section 263 of the Act as the assessment order was erroneous and prejudicial to the interest of the Revenue.
