Rajeev Sureshbhai Gajwani Vs. ACIT – Article 26(2) means that taxation of a PE of a USA resident shall not be less favorable than the taxation of a resident enterprise carrying on the same activities. The result is that the exemptions and deductions available to Indian enterprises would also be granted to the US enterprises if they are carrying on the same activities. As the assessee was carrying on the “same activities” of export of software as done by residents, it was entitled to s. 80HHE deduction as admissible to a resident assessee.
Explore the legal battle: Purvez A. Poonawalla’s settlement with R.K.Bavasa, challenging the will of late Mrs. Mani Cawasa Bamji. Tax implications discussed.
The AO relied on the specific principle mentioned in the circular. However, the circular has no binding force on the income-tax authorities and needs to be used only as guidance. While applying the principles of the circular, the facts need to be considered in each of the case. It is well-settled principle that whether the activity of buying and selling of the shares is in the nature of trade and investment is a mixed question of law and fact. In this case, on perusal of the details of share transactions filed with the return of income, the Tribunal observed that, the taxpayer has treated the entire investment in the shares as an investment only and not as a stock-in-trade.
Non-referred international transactions fall outside the TPO’s jurisdiction . The Delhi Bench of the Income-tax Appellate Tribunal (the Tribunal) in the case of M/s. Amadeus India Pvt Ltd v. ACIT, Range-I, New Delhi (ITA No. 5203/Del/2010) held that the role of Transfer Pricing Officer (TPO) is limited to the determination of arm’s length price in relation to the international transaction(s) referred to him by the Assessing Officer (AO). The TPO, suo motto, cannot take cognizance of any other international transaction not referred to him by the TPO.
Income Tax Appellate Tribunal (“The Tribunal”), Delhi Bench recently pronounced its ruling in the case of M/s Aricent Technologies (Holding) Limited v. DCIT (Appeal no. ITA No. 4699 /Del. /2010) for AY 2006-07, on the amount paid as incentive to employees of the Taxpayer by its parent company pursuant to transaction of takeover for the employees’ retention. The Tribunal held in favor of the Taxpayer observing that transaction does not have any element of income for the purpose of making an adjustment to the price of the said international transaction and is merely in the nature of reimbursement of incentive paid by Taxpayer to its employees.
The Delhi bench of the Income Tax Appellate Tribunal (Tribunal) recently pronounced its ruling in the case of Birlasoft (India) Ltd. v. Dy. CIT ITA NO. 3839/DEL/2010, where the Taxpayer had determined the arm’s length price of their international transactions on the basis of internal benchmarking analysis. The Tribunal upheld the transfer pricing method followed by the Taxpayer whereby the net cost plus margin earned from rendering software development and related services (“software services”) to associated enterprises (AEs) were compared with the operating profit margin earned from rendering software services to unrelated parties.
Mumbai ITAT has held in an important case namely Kumarpal Amrutlal Doshi vs. DCIT (ITAT Mumbai) that relief u/s 54EC shall be available even if the bonds are issued after the requisite period of 6 months for investment, if the cheque is issued within the period of 6 months but cheque is encashed after the requisite period and bonds are also issued after the requisite period of 6 months.
“ On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the A.O. to accept the claim of Short Term Capital Gain and Long Term Capital Gain on profit arriving from purchase & sale of shares instead of business income treated by the A.O. without appreciating the fact that the assessee is dealing in large volume of shares, most of the shares are bought and sold within short period, while some are not sold due to market conditions and their holding with assessee remains beyond few days, it will not change the nature of transactions and the assessee is very well engaged in the business of share trading, which denote that the motive of the assessee is to carry on business in shares to book profit rather than investment in shares.”
Padam Prakash (HUF) vs. ITO (ITAT Delhi Special Bench). If the application filed by the assessee is viewed in the light of aforementioned judicial pronouncements, then it will become clear that the relief which is being sought by the assessee by way of impugned rectification application is not legally tenable for the reason that the Tribunal has no power to adjudicate upon subsequent application filed u/s 254(2). Here, it may be the case of the assessee that earlier order against which impugned rectification application is filed is also an order passed on subsequent application, then the only course permissible to the assessee is to file an appeal against that order and not to approach the Tribunal to contend that the said order was an invalid order, therefore it should be recalled.
Delhi bench of the Income-tax Appellate Tribunal (the Tribunal), in the case of DCIT v. Select Holiday Resorts Pvt. Ltd. (ITA Nos. 1184 & 2460/Del/2008) (Judgment Date: 23 December 2010, Assessment Years: 2004-05 & 2005-06) held that where a parent company merged with its subsidiary, the benefit of brought forward and set off of losses under Section 79 of the Income-tax Act, 1961 (the Act) claimed by the amalgamated company, cannot be disallowed on the grounds that there was a change in the shareholding of more than 51 percent of the share capital of the subsidiary company since there was no change in control and management of amalgamated company pre and post merger.
