Facts in brief as emerged from the corresponding assessment order passed u/s. 143(3) of the IT Act dated 18.12.2008 were that the assesseefirm is in the business of public work construction on contract basis. It was noted by the AO that the assessee has claimed an expenditure of Rs. 59,93,911/- which according to him was in the nature of “penal expenditure”.
On the other hand, the ld. Senior DR relied on the orders of the lower authorities and contended that theory of gift was having a fundamental flaw in so far as there was absolutely no explanation as to why the alleged donor has given gift to the assessee.
We also note that even in the case of comparables selected by the assessee details of which have been given in para 3 of the order earlier, there is wide fluctuation in the margins of the companies; the lowest margin i.e. 0.34% in case of Ask Me Info Hub Ltd. and the highest margin as 27.98% in case of Allsec Technologies Ltd. Obviously the cases selected by the assessee are not identical otherwise there would not have been so wide variation Excluding the highest margin and the loss case, the average margin of other comparables of the assessee comes to only 4.5% which is 1/6th of the highest margin.
The stand of the revenue that expenditure incurred by the society on giving presents to as own members would amount to expenditure on itself or application of its income to its members also could not be countenanced as the society was entirely a separate entity
As far as submissions of allowing the deduction in subsequent AY. is concerned we are of the opinion that the question is not arising out of the appeal decided by the FAA and appeal for the next AY is not before us. In these circumstances, we do not want to pass any order in this regard.
Assessing 0fficer can invoke Rule 8D only when he records satisfaction in regard to the correctness of the claim of the assessee, having regard to the accounts of the assessee. The condition precedent for the Assessing 0fficer entering upon a determination of the amount of the expenditure incurred in relation to exempt income
Following the decision of ACE Builders (P) 28 ITR 2000(Bom) and Assam Petroleum Industries Pvt Ltd 262 ITR 58 (Gau). It was held that Section 54E does not make any distinction between the depreciable assets and non-depreciable assets, therefore, the investment u/s 54E is a permissible investment.
The ld. CIT(Appeals) erred in law in not appreciating that benefit u/s.54EC is granted on capital gains and not on sale proceeds of capital asset. And that capital gain in respect of depreciable assets can be arrived at only u/s.50 and therefore, deeming provisions of section 50 cannot be ignored for the purpose of section 54EC.
The undisputed fact is that the property in question is an I.T. Park, with all infrastructure facilities and services. This is not a simple building. The Ministry of Commerce and Industries, notifies certain building as I.T. Park only if various facilities and infrastructure, as specified by the Department, are provided. It is an undisputed fact that all the technical requirements, infrastructures, facilities and services are being provided in this building and it was only for this reason that not only the Ministry of Commerce & Industries, but also the CBDT notified the same as an I.T. Park which entitles the assessee to earn certain incentives.
We find that with regard to the investment of Rs. 5907.18 lakhs in foreign subsidiaries, no disallowance can be made under section 14A because dividend income from foreign subsidiaries is taxable in India. Regarding balance investment of Rs. 38 crores approximately in Indian subsidiaries, we find that interest-free own funds of the assessee is many times more than this investment because interest free funds available with the assessee as on March 31, 2005 as per the balance-sheet as on that date is of Rs. 929.57 crores. There is no finding given by the Assessing Officer regarding any direct nexus between interest bearing borrowed funds and investment in Indian subsidiaries. Hence, in our considered opinion, no disallowance under section 14A can be made out of interest expenditure in the facts of the present case. Accordingly, ground Nos. 2 and 3 of the Revenue’s appeal are rejected.
