Assessee had disclosed full and true particular relating to claim of depreciation at time of original assessment then assessing officer has no jurisdiction to issue notice under section 148 of the Act, after the period of four year from the end of relevant assessment year. We, therefore, issue a writ of certiorari quashing the notice under Section 148 of the Act.
It was held that consideration paid by the Indian customers or end users to the assessee – a foreign supplier, for transfer of the right to use the software/computer programme in respect of the copyrights falls within the mischief of ‘royalty’ as defined under sub-clause [v] to Explanation 2 to Clause [vi] of section 9[1] of the Income-tax Act, 1961.
The assessee cannot be heard to say that the Tribunal was obliged to inform the petitioner about the dismissal of the order. Assuming that the Tribunal is required to send a copy of the order to the assessee/appellant, the assessee is also obliged to be vigilant about the proceedings initiated by him.
Whether where substantial investment has been made and the new plant and machinery is installed in the newly constructed building it can be said that assessee has set-up a new industrial undertaking and it is not the expansion of earlier unit and hence the depreciation of such unit is not to be set-off with the income of that unit which enjoys deduction u/s 80I.
The notification dated 5th June, 2007 issued in terms of the proviso does not help the appellants. The proviso itself stipulated that the Government by a notification in the official gazette can withdraw the concession. Thus, the State Government had retained their right to ask the appellants to pay enhanced VAT on the basis of enhanced/increased sale price with effect from 6th June, 2006 by issue of a notification and an amendment to the Act was not necessary. The last part of the proviso was to operate and was applicable in a different situation. This does not mean that the proviso has to be read in a manner that it is applied even after the roll back of the prices of petrol and diesel to the pre 6th June, 2006 level.
In the present case, the appellant assessee had filed before the Tribunal a copy of their bank account statements as well as ledger account of the parties to whom the payment was required to be made. It is apparent that the appellant-assessee was not doing well in its business and was facing liquidity and financial crunch. An examination of the bank account statement shows that whenever cash deposit was made in the bank account, it was immediately thereafter utilized to issue cheques towards the expenditure.
In the present case it is not the case of the Revenue that the new unit by itself is not capable of production of goods but the case of the Revenue is that it takes help of the old existing unit. We are of the view that, that itself should not be the reason to reject the claim under Section 80-I of the Act. Thus, whether an undertaking is a “new industrial undertaking” entitled to the exemption under Section 80-I of the Act depends on the facts of each case. No hard and fast rule can be laid down. Use by the assessee of the old undertaking for the purpose of production in its new undertaking is not a decisive test in construing Section 80-I of the Act.
CIT v. Bovis Lend Lease (India) (P.) Ltd. In the instant case, it is the consistent stand of both the assessee and LLAH that the consideration paid under the agreement is by way of reimbursement of actual expanses. Therefore, even when a credit entry was made in the accounts as the assessee was treating it only as a reimbursement of actual expenses, he was under no obligation to deduct tax from the said amount as the said amount did not represent income. When LLAH approached the Assessing Officer and made the aforesaid representation, a certificate under Section 197(1) came to be issued. On the face of the certificate issued under Section 1971(1) being made available to the assesses by LLAH, the assessee could not have deducted tax at source. Therefore, he cannot be treated as a defaulter under law. He is not an assessee in default as understood under Section 201 of the Act.
ITO V/s. DG Housing Projects Ltd. In the present case, the findings recorded by the Tribunal are correct as the CIT has not gone into and has not given any reason for observing that the order passed by the AO was erroneous. The finding recorded by the CIT is that order passed by the AO may be erroneous.
The fact that the Assessing Officer in the assessment proceedings under section 143(3) of the Act did not give any opinion regarding the allowability or otherwise of deduction u/s 80IB (10) of the Act is not a ground of invoking Section 147 of the Act.
