Assistant Commissioner of Income tax v. Srj Peety Steels (P) Ltd. (ITAT Pune) – When noting incriminating was found in the course of search relating to any of the assessment years, the assessments for such years could not be disturbed; further, consumption of the electricity for the manufacture of mild steel ingots / billets depends on various factors and the AO did not attempt to establish a direct nexus between production and electricity consumed and therefore no addition was called for.
The Tribunal while upholding the order of the CIT(A) and after relying on the decision of the AAR in the case of Brown and Root Inc. held that since an installation project was not carried on for more than six months, as per Article 5(2)(k) of the tax treaty the taxpayer did not create PE in India.
Mumbai bench of the Income-tax Appellate Tribunal held that the supply of software does not amount to any transfer of copyright but only transfer of copyrighted article. Further, payment received for sale of copyrighted article does not amount to income from royalty within the meaning of the India-Israel tax treaty. Further, the Tribunal held that payment received from sale of software copy does not amount to income from royalty under the tax treaty.
Recently, the Mumbai bench of the Income-tax Appellate Tribunal held that the payment received by the taxpayer company towards the sale of copyright article does not amount to royalty within the provisions of Article 12(3) of the India-USA tax treaty (tax treaty).
Recently, the Delhi bench of the Income-tax Appellate Tribunal dealt with the issue of taxability on sale of shares under India-Mauritius tax treaty (tax treaty). The Tribunal asked for either third party evidence or evidence by any government agency either situated in Mauritius or in India to be brought on record to substantiate taxpayer’s claim regarding holding board meetings in Mauritius. The Tribunal held that the documents placed on record needed examination regarding their authenticity and relevance, accordingly restored the case back to the Assessing Officer (AO) to decide the same afresh.
The assessee, a broker in the BSE, disclosed short-term capital gains and long-term capital gains on sale of shares. The AO accepted the LTCG as such though he held that the STCG was assessable as “business profits” on the ground that the assessee was a stock broker & there was large volume and frequency (more than 300) transactions. On appeal, the CIT (A) reversed the AO. On appeal by the department to the Tribunal, HELD dismissing the appeal:
The argument that section 90 & 91 are confined to USA Federal taxes and not to USA State taxes and that therefore the bar in s. 40(a)(ii) does not apply to USA State taxes is not acceptable because any payment of income-tax is an application of income as held in Inder Singh Gill 47 ITR 284. Further, the scheme of ss. 90 & 91 does not discriminate between Federal taxes and State taxes and though the India-USA DTAA confines the credit only to Federal taxes, the assessee will be entitled to relief u/s 91 in respect of both taxes as that will be more beneficial to the assessee vis-à-vis tax credit under DTAA. Consequently, the bar against deduction in s. 40(a)(ii) will apply to USA State taxes as well though the assessee will be entitled to credit in respect of USA State taxes.
As a pawnee/pledgee, the assessee does not have absolute rights over the shares. He could sell the security in a manner contemplated by law. In case the proceeds were greater than the amount due to him, he had to pay the surplus to the pawnor.
Commission paid to agents for services rendered outside India is not chargeable to tax in India and there is no obligation to deduct tax u/s 195. As Agent was not a performer, his income was not covered under Article 18 of the DTAA but was covered by Article 7 and as the services were rendered outside India and there was no PE, the same was not assessable to tax in India.
It was held by ITAT, Mumbai that computer software when put into a media and sold becomes goods like any other audio cassette or painting on canvass or book. Accordingly, the amount paid by taxpayer towards purchase of such computer software from a Singapore company cannot be treated as royalty as per the India-Singapore tax treaty (tax treaty).
