Assessee has challenged the addition of Rs.30,914/- made by the Assessing Officer on account of non-occupancy charges as income from the business not covered under the principles of mutuality. Learned AR submitted that the assessee’s case is covered by the decision of the ITAT Mumbai Bench passed in ITA No.6325/Mum/06 for the assessment year 2003-2004 vide order dated 14-5-2009 in the case of the assessee itself.
The only other issue in this appeal is against the deletion of addition of foreign travel expenses. The facts of this ground are that the assessee incurred foreign travelling expenses to the tune of Rs. 23.50 lakh. The A.O. disallowed a sum of Rs. 3 lakh for the reason that the journeys undertaken were not in connection with the business. The learned CIT(A) deleted the addition by observing that all the places visited by the assessee were in connection with the business. No material has been brought on record to controvert this finding of the learned CIT(A). We, therefore, uphold the impugned order to this extent. This ground is not allowed.
In our considered view the contention of learned counsel for the assessee has substance inasmuch as Indian law does not prescribe registration of the Will, it should be in writing, attested by two witness; there is no requirement of any registration or notarization thereof. In this case the Will is in writing and duly attested by two witnesses, therefore, no adverse inference can be drawn on the aspect that witness did not advice for registration of the same.
The main issue raised by the DIT(E) is in respect of holding of conference of doctors at a five star hotel and the fact that the donors are pharmaceutical companies and some of them have deducted TDS. Adverse inference has also been drawn from extravagance of expenses the fact that the conference was of doctors and there is no benefit to the common public.
The instant case is that of the partner and therefore what is to be examined is whether the share income is excluded from his total income. The answer is obviously in the affirmative. In such a situation, provision contained in section 14A will come into operation and any expenditure incurred in earning the share income will have to be disallowed. section 14A uses the words expenditure incurred by the assessee in relation to income. A statutory allowance under section 32 i.e. Depreciation is not an expenditure.
A was the managing director and in terms of the board resolution was entitled to receive commission for services rendered to the company. It was a term of employment on the basis of which he had rendered service. Accordingly, he was entitled to the amount. Commission was treated as a part and parcel of salary and tax had been deducted at source. A was liable to pay tax on both the salary component and the commission. The payment of dividend was made in terms of the Companies Act, 1956. The dividend had to be paid to all shareholders equally. This position could not be disputed by the Revenue. Dividend was a return on investment and not salary or part thereof.
In the instant case before us also, the assessee parted with a portion of his commission received from the builder for helping the intending buyers of flats. In other words, the purchasers received discount in the purchase price .There is nothing to suggest that the purchasers of flats rendered any service to the assessee rather the assessee rendered services to the intending purchasers. In the light of view taken by the Hon’ble Apex Court in their aforesaid decision in Surendra Buildtech Pvt. Ltd(supra),especially when the Revenue have not placed before us any material ,controverting the aforesaid findings of the ld. CIT(A) so as to enable us to take a different view in the matter, we are not inclined to interfere with the findings of the ld. CIT(A),holding that the provisions of section 1 94H are not attracted while making payments to the aforesaid intending purchasers of flats. Consequently, provisions of sec. 40a(ia) of the Act are not applicable.
Looking to the nature of professional services rendered to the KPMG USA, it is evident that it does not fall in any of the terms of definition given for Royalty under Article 12 of Indo US DTAA. It was purely a professional service for consultancy which were rendered outside India and nor for supply of scientific, technical, industrial or commercial knowledge or information. Thus, nature of payment do not fall within the meaning of Article 12 and, therefore, there was no liability to deduct TDS and consequently disallowance made under section 40(ia) is uncalled for.
In the present case, it is an admitted fact that the partners Shri C.P. Mathur and Shri L.C. Mathur contributed Rs. 8 lacs and Rs. 4,30,000/- respectively as their capital and the Assessing Officer made the addition by invoking the provisions of section 68 of the Income-tax Act. On a similar issue, the Hon’ble Jurisdictional High Court in the case of Kewal Krishan & Partners, Sri Ganganagar (supra) held as under :-
Apart from arguing that the payments were in the nature of reimbursement of expenses, the assessee has not explained anything about the pricing of the services, for which the so-called reimbursements were made by the Indian subsidiary to the assessee company. It is the case of the assessee that expenses were reimbursed by the Indian subsidiary at par with the invoices issued by third parties.
