The next question that arises is that as to the allocation, if so, of the expenditure, when the returns as per the investment strategy adopted is toward and, consequently, bound to be earned under different income heads, being ‘capital gains’ and ‘income from other sources’ in the instant case, and while being allowable in one case (the latter), is not so under the other (the former).
Assessing Officer has observed that in response to show-cause notice issued to the assessee specifying the defects noticed in M/s. Agrawal Enterprises, the assessee has simply escaped by saying that it is not their mistake if the seller did not show the cash sales in their books of account. It was further observed by the Assessing Officer that on verification of the copies of account furnished by the assessee, it was noticed that the assessee had claimed to have made cash purchase from M/s. Agrawal Enterprises during the period October 22, 2004 to December 31, 2005 however, verification of the contra confirmation filed by M/s. Agrawal Enterprises, it was noticed that they had not shown such cash in their account.
Tribunal referred to a book titled Law of Copyright and Industrial Designs by P. Narayanan wherein it was stated in paragraph No. 17.02 that a cinematograph film depicting live events like sporting events, horse race, etc. cannot infringe any copyright because there is no copyright in live events. The Tribunal held that there is thus no copyrights in the live events and depicting the same cannot infringe any copyright.
The Senior Counsel argued at length, whether such non compete right constitute is a right in rem or otherwise, is a matter to be decided by an appropriate higher judicial forum. In the instant proceedings, we cannot import the decision of Hon’ble Supreme Court of India in the case of Smifs (supra), wherein the Hon’ble Apex Court held that goodwill was an intangible asset and eligible for depreciation.
In the present case, the payment to the actual beneficiary is made by the Competent Authority of Metro Railways Kolkata and not by the Dy FA and CAO of Metro Railways Kolkata. No doubt, the tax deduction obligations are on the person who makes payment to the beneficiary, and it was an undisputed position that the payment for land acquisition was made by the Land Acquisition Officer. In this matter, Hon’ble Court also observed that the tax deduction obligation are on the person who “had money in his possession and was responsible for making the payment of that income to the assessee (i.e. actual beneficiary of compensation in this case).” It is important to bear in mind the fact that the assessee is this case was the person receiving the compensation in his own right and not in any fiduciary capacity. Therefore, even going by this principle, the tax deduction liability is on the Competent Authority of Metro Railways Kolkata who makes the payment to the person receiving compensation.
We have applied the above ratio to the facts of the instant case and find the two flats in question are not adjacent and they are not functionally one residential house with two adjacent units. Revenue has not brought any contrary decision to our notice. Considering the settled nature of the issue, we are of the opinion, the order the CIT(A) does not call for any interference on this issue.
The service which is rendered by the Google is generation of certain text on the search engine result page. This is a wholly automated process. There is no dispute that in the services rendered by the search engines, which provide these advertising opportunities, there is no human touch at all. The results are completely automated and, as evident from the screenshots we have reproduced earlier in this order, these results are produced in a fraction of a second- 0.27 seconds in the screenshot reproduced earlier.
As rightly submitted by learned counsel for the assessee, the impugned order of the learned Commissioner of Income-tax (Appeals) is well reasoned and well discussed on this issue and the same is self explanatory as regards the reasons given by him for deleting the additional disallowance of Rs. 5,98,139 made by the Assessing Officer under section 14A. As held by him relying on the decision of the hon’ble Bombay High Court in the case of Godrej and Boyce Mfg. Co. Ltd. (supra), rule 8D applied by the Assessing Officer to work out the disallowance under section 14A was not applicable to the year under consideration.
Facts are not in dispute inasmuch as it is also not in dispute that the assessee has paid the amount of service tax of Rs. 41,97,663/- before the due date of filing of return, therefore, the ld. CIT(A) has rightly deleted the said disallowance. As regards other disallowance of service tax payable Rs. 48,10,998/- we find merit in the plea of the ld. counsel for the assessee that the issue is covered in favour of the assessee by the decision of the Tribunal in Pharma Search (supra) wherein the Tribunal after considering the decision of Chowringhee Sales Bureau (P.) Ltd. v. CIT [1977] 110 ITR 385 (Cal.), Real Image Media Technologies (P.) Ltd. (supra) and other decisions held as under:-
The language of this proviso to section 92C(2) makes it clear that selecting a price within the range of +-5% of such arithmetic mean if more than one price is determined by the most appropriate method. Therefore, the ALP shall be taken to be in the range of ± 5% of arithmetic mean of more than one price. Since in this case, one comparable is considered as ALP; therefore, the benefit under the said proviso would not be available.
