The other objection taken by the TPO for rejecting CUP method was that there was difference in the dates of comparable transactions. The ld. DR brought to our notice the transactions entered into by the assessee with its AE on 27.11.2004 which was compared by the assessee with transactions entered with Non-AEs on 10.5.2004 & 12.3.2005. It can be observed that the comparison is made by the assessee with the transactions entered into in the same year with Non-AEs.
At the time of registration proceedings u/s 12A r.w. section 12AA of the Act, the CIT is statutorily required to examine and satisfy himself as to the genuineness of the activities of the Trust or institution, carried on, in consonance with its objects. The objects of the trust or institution must conform to the definition of ‘Charitable purpose’ as defined u/s 2(15) of the Act.
As regards the year of allowability, the claim has to be allowed on the basis of restatement of the liability on the balance-sheet date as held by the hon’ble Supreme Court in the case of Woodward Governor India (P.) Ltd. (supra). Thus the claim of the assessee is allowable. In case there is gain in a year and the assessee has not offered it to tax, the Revenue is free to take action under law. In these years, admittedly there is loss which is allowable as deduction.
The machinery which was purchased by the assessee in the course of expansion of new Project was installed in the year 1996-97 relevant to the Asst. Year 1997-98. There is nothing on record to suggest that the assessee had put the machinery to use during the Asst. Year 1998-99. It appears that the assessee had claimed 100% depreciation as the project was completely abandoned later in the year 1999. Since the machinery was never put to use by the assessee no depreciation is allowable for the Asst. Year 1998-99.
In the instant case, the interest is payable in respect of amounts deposited by financial institutions with the assessee by subscribing to the bonds issued by the assessee. The interest is payable in respect of certain deposits received by the assessee and not in respect of any loans, advances or borrowings made by the assessee. For the same reason, clause (e) of section 43B relating to loans and advances from a scheduled bank is also not applicable in the instant case.
Ld. Counsel of the assessee submitted that that even if any freight, telecommunication or insurance expense during the year, are reduced from the export turnover, such sums will also have to be reduced from the total turnover of the company for the purpose of computation of deduction u/s. 10A.
Exemption claimed by the assessee under S.54 of the Act cannot be denied on the ground that the assessee has not utilised the sale consideration received from the sale of flats itself, in purchasing the plot. Law is well settled by the judicial precedents that investment in purchase of pot for construction of house would entitle an assessee to claim exemption u/s.54 or 54F of the Act. Board’s circular No.667 dated 18.10.1993 also says so.
In the instant case, the assessee although an extended arm of State Government formed as a society to carry out charitable activities in the nature of ‘general public utility’ is in fact providing assistance to industrial houses and entrepreneurs for setting up of industry in the State of Tamil Nadu. The assessee facilitates in providing licence, approval and permission from various Government agencies for setting up of industry in the State, for which it is charging fee. The fee charged by the assessee is not remitted to the Government treasury or exchequer. After insertion of proviso to section 2(15) of the Act, the assessee has lost its character of charitable organization. The assessee is a service provider.
In the instant case, the capital asset having become the asset of the previous owner prior to 1-4-1981, the fair market value (FMV) of the same as on 1-4-1981 has been adopted as the deemed cost of acquisition in the hands of the assessee as well, and on which aspect of the matter there is no dispute. How could then, that being the case, the assessee claim further deduction toward the claimed cost in removing the encumbrance or satisfying the condition precedent, i.e., assuming so, subject to which the property stands bequeathed to her? It is, thus, only the cost, where so, as incurred by the previous owner, or that which would stand to have been incurred by him, that would qualify for deduction under section 48(ii).
As regards the data used by the TPO while determining the ALP, we find that it is to be as per the provisions of section 92D of the Act that every person who has entered into international transactions is required to maintain information and documentation thereof. Rule 10B(4) provides that the information and documents as specified under Rule 10B(1) and 10B(2) should as far as possible be contemporaneous and should exist latest by the “specified date” referred to in section 92F(4) which has the same meaning as ‘due date’ in Explanation 2 to section 139(1) of the Act. In the assessee’s case, this would be ’30th day of September’ as it is a company.
