The proposition that gain on foreign exchange if it relates to the business of the assessee is part and parcel of operating income is well established by the afore-mentioned decisions of the coordinate benches. In the present case, nothing has been brought on record to suggest that the gain made by the assessee on fluctuation of foreign exchange was not on account of business transactions of the assessee. In absence of any such material, following the afore-mentioned decisions of the Tribunal, it has to be held that the foreign exchange gain of the assessee is to be considered as part and parcel of the profit of the assessee and therefore should be included for the purpose of computing the profit margin of the assessee.
In this context, it is pertinent to refer to the decision of the Hon’ble ITAT, Chandigarh Bench, in the case of Dy. CIT v. Smt.Baljinder Kaur [2009] 29 SOT 9 (URO), wherein it has been held that it is a well settled proposition that the concept of ‘fair market value’ envisages existence of hypothetical seller and hypothetical buyer, in a hypothetical market. Therefore, determination of fair market value of capital asset, as on 1.4.1981, would involve a judgement of estimation, based on relevant factors.
The first comparable taken by the TPO is CRISL Research and Information Services Ltd. The said comparable is common as the assessee has also selected the same in its original TP study. Though CRISL Ltd is basically a rating agency; however, since the segment results relating to the research activity has been taken into consideration; therefore, the other activity being rating agency does not effect the comparability solely because of this fact. The ld Sr counsel for the assessee has pointed out that about 60% of the income of the CRISL Ltd is from the related party transactions. This is a material fact that has to be considered for the purpose of selecting the uncontrolled comparable transactions as per sec. 92C(1) r.w.r 10B(1)(e) for the purpose of determination of ALP.
The next question that arises is that as to the allocation, if so, of the expenditure, when the returns as per the investment strategy adopted is toward and, consequently, bound to be earned under different income heads, being ‘capital gains’ and ‘income from other sources’ in the instant case, and while being allowable in one case (the latter), is not so under the other (the former).
Assessing Officer has observed that in response to show-cause notice issued to the assessee specifying the defects noticed in M/s. Agrawal Enterprises, the assessee has simply escaped by saying that it is not their mistake if the seller did not show the cash sales in their books of account. It was further observed by the Assessing Officer that on verification of the copies of account furnished by the assessee, it was noticed that the assessee had claimed to have made cash purchase from M/s. Agrawal Enterprises during the period October 22, 2004 to December 31, 2005 however, verification of the contra confirmation filed by M/s. Agrawal Enterprises, it was noticed that they had not shown such cash in their account.
Tribunal referred to a book titled Law of Copyright and Industrial Designs by P. Narayanan wherein it was stated in paragraph No. 17.02 that a cinematograph film depicting live events like sporting events, horse race, etc. cannot infringe any copyright because there is no copyright in live events. The Tribunal held that there is thus no copyrights in the live events and depicting the same cannot infringe any copyright.
The Senior Counsel argued at length, whether such non compete right constitute is a right in rem or otherwise, is a matter to be decided by an appropriate higher judicial forum. In the instant proceedings, we cannot import the decision of Hon’ble Supreme Court of India in the case of Smifs (supra), wherein the Hon’ble Apex Court held that goodwill was an intangible asset and eligible for depreciation.
In the present case, the payment to the actual beneficiary is made by the Competent Authority of Metro Railways Kolkata and not by the Dy FA and CAO of Metro Railways Kolkata. No doubt, the tax deduction obligations are on the person who makes payment to the beneficiary, and it was an undisputed position that the payment for land acquisition was made by the Land Acquisition Officer. In this matter, Hon’ble Court also observed that the tax deduction obligation are on the person who “had money in his possession and was responsible for making the payment of that income to the assessee (i.e. actual beneficiary of compensation in this case).” It is important to bear in mind the fact that the assessee is this case was the person receiving the compensation in his own right and not in any fiduciary capacity. Therefore, even going by this principle, the tax deduction liability is on the Competent Authority of Metro Railways Kolkata who makes the payment to the person receiving compensation.
We have applied the above ratio to the facts of the instant case and find the two flats in question are not adjacent and they are not functionally one residential house with two adjacent units. Revenue has not brought any contrary decision to our notice. Considering the settled nature of the issue, we are of the opinion, the order the CIT(A) does not call for any interference on this issue.
The service which is rendered by the Google is generation of certain text on the search engine result page. This is a wholly automated process. There is no dispute that in the services rendered by the search engines, which provide these advertising opportunities, there is no human touch at all. The results are completely automated and, as evident from the screenshots we have reproduced earlier in this order, these results are produced in a fraction of a second- 0.27 seconds in the screenshot reproduced earlier.
