In the above ruling, fees paid to a resident of Canada as consideration for analysis of samples and ores conducted from technical lab was held as fees for technical services u/s.9(1)(vii) and Article 12 of the India-Canada Treaty. No arguments were made on the aspect of ‘make available’ requirement present in the definition of ‘fees for technical services’ under Article 12 of the Treaty and the AAR also did not consider this. Thus, the decision relied on by the learned Departmental Representative is distinguishable.
A perusal of the assessment order clearly shows that the Assessing Officer questioned the assessee why there is a difference in the rate of discount. Assessee replied to the questions raised by the Assessing Officer. However, the Assessing Officer has proceeded to compute the discount by hypothetical calculation to arrive at discount rate for the whole year and then asessee applied on monthly sale basis. This obviously is not permissible in so far as the discount granted by the assessee is not a constant every month. The average rate of discount would be a highly impractical method. In the circumstances, the addition in respect of discount as made by the Assessing Officer and confirmed by the learned Commissioner of Income-tax(Appeals) stands deleted.
A perusal of the order of the learned Commissioner of Income-tax (Appeals) clearly shows that the assessee had written off bad debt in the books. Further, it is noticed that the Learned Commissioner of Income-tax (Appeals) had followed the decision of the Hon’ble Bombay High Court in the case of Director of Income-tax (International Taxation) Vs. Oman International Bank (refer to supra) on this issue. The finding of the learned Commissioner of Income-tax (Appeals) that the bad debt written off in the books has not been disputed by the revenue. In the circumstances, the finding of the learned Commissioner of Incometax (Appeals) on this issue is on right footing and does not call for any interference.
Decision of the Mumbai Bench of the Tribunal in the case of Homi K. Bhabha Vs. ITO was brought to our notice by the learned DR wherein it was held that Portfolio Management Scheme fees is not deductible against capital gains. The decision of the Pune Bench of the Tribunal in the case of KRA Holding & Trading was not followed by the Mumbai Bench in the above cited decision.
It is very clear that the assessee consciously split up the payments in whole of the year, which is impracticable, illogical as noted above and it was done just to circumvent the provisions of law. There was no justification for the assessee to split up the transactions of crores of rupees in small payments of Rs. 15,000/- to Rs. 20,000/- everyday. Whatever plea was taken before the authorities below was not supported by any evidence.
Ld. CIT(A) on pages 51-52 of his order that the assessee could not provide even the names and addresses of those parties to whom cash sales were claimed to have been made. This is the main basis on which Ld. CIT(A) has confirmed the decision of the A.O. In our considered opinion, it cannot be said that in the case of cash sales, the assessee is bound to keep record of the names and addresses of the buyers. The judgement of Hon’ble Bombay High Court cited by the Ld. A.R. rendered in the case of R B Gurnam Fatehchand vs ACIT as reported in 75 ITR 33 also supports the case of the assessee. In that case also, the assessee was not in a position to give the addresses of the customers to whom cash sales were made. Under these facts, it was held by the Hon’ble Bombay High Court that this cannot be the basis to reject the book results.
Tribunal decision in the case of ITO Vs Gyani Exports as reported in 94 TTJ 557 wherein, it was held that gain from foreign exchange fluctuation as eligible for deduction u/s 80HHC. No contrary decision was brought to our notice by Ld. D.R. and hence, on this issue also, we decline to interfere in the order of Ld. CIT(A).
It has not been disputed that the four sellers of the agricultural lands were neither examined nor their statements recorded, nor sec. 50C was invoked against them. Under these circumstances, the addition on the basis of a presumption which according to I.T. Act can only be raised against seller, cannot be made in the hands of the purchaser. Besides, we find merit in the argument of learned counsel for the assessee that provisions of sec. 142A cannot be applied against a transaction which is stock in trade. Order of CIT(A) is upheld as being on just and proper observation.
Amended section 10B as well as section 10A, 10AA, 10BA were introduced in the Act with a specific purpose. All these sections can be classified as ‘special provisions’ with regard to allowable deductions in certain areas. Said sections contain an in-built mechanism for computing the profits arising out of the business activities of the units/undertakings. It is a fact that above sections, including section 10B talk about ‘deductions’, but it is also a fact that still they are part of Chapter III i.e., the chapter that deals with income which do not form part of total income.
The issue as to whether there was concealment of particulars of income on the part of the assessee so as to attract penalty under section 271(1)(c) depends on the acceptability of the explanation of the assessee that the mistake in this regard was inadvertent due to his ignorance of Indian Income-tax law, hence there was bona fide reason for the same.
