If TPO does not reject a comparable on the ground of functional incomparability then neither the AO or the revenue can take a plea of functional incomparability of the comparables chosen by the assessee in its TP Study. We are, therefore, of the view that the assessee’s operative margin has to be held as within the range of 5% of the arithmetic mean of 18.97% of comparable companies and the same has to be accepted as ALP. For the reasons given above, the addition made by the AO and confirmed by the DRP is directed to be deleted.
we are of the view that the principle of mutuality is fully applicable and the interest earned on the fixed deposits with the bank and other institutions is fully covered within the parameters of mutuality. We fully endorse the view taken by CIT(A) in the case of Hill Properties Ltd. ITA No. 6223, 6249/Mum/09, that the principle of mutuality cannot be destroyed simply because the funds were not parked with members but with third parties who are not members of the Society.
The matter came up in appeal before ITAT in the assessee’s own case and other cases in ITAs No. 453,454,456/M/2010 & 458 & 455/M/2010. During the continuance of these appeals, Hon’ble Bombay High Court came up with the decision in Godrej & Boyce Manufacturing Co. Ltd. V/s DCIT, reported in 328 ITR 81 (Bom), wherein the Hon’ble Bombay High Court held that the operation of Rule 8D shall only be from 2008-09 onwards, and not being retrospective.
Coming to the issue as to whether the AADT with Malasia would disentitle the deduction we agree with the submissions of the assessee that the whole world income is taxable in the hands of the assessee under the provisions of the Act and when it is done so, section 90(2) mandates that the provisions of this Act shall apply to the extent they are more beneficial to the assessee.
Section 115A; vs DTAA rate; Assessee can choose between treaty rate and 115A for different agreements before and after 1.6.2005. Assessee has not invoked or applied the provisions of the Treaty selectively. The assessee has computed the tax on royalty income arising from two different contracts falling under two different limbs of section 115A(1)(b) at two rates
On a difference of opinion among the two Members of the Tribunal, the ld.Third Member was called upon to answer two questions on which there was difference of opinion among the two members who framed the questions and the ld.Third Member in a well considered order, answered the reference by giving sound and valid reasons agreeing with the views of the ld. Judicial Member. Thus, the majority view was in favour of the assessee.
For application of Sec.50C that the transfer must be of a capital asset, being land or building or both. If the capital asset under transfer cannot be described as land or building or both then section 50C will cease to apply. From the facts of the case narrated above, it is seen that the assessee has transferred booking rights and received back the booking advance. Booking advance cannot be equated with the capital asset and therefore section 50C cannot be invoked.
These appeals were originally posted for hearing on 09.11.2011 (vide AD card) and at the request of the assessee it was adjourned from time to time and finally posted for hearing on 04.04.2012 on which date none appeared on behalf of the assessee. Though the assessee has raised several grounds no material, whatsoever, was filed to contradict the findings of the learned CIT(A). Under these circumstances, applying the decision of the Hon’ble Bombay High Court in the case of M/s. Chemipol vs. Union of India in Central Excise Appeal No. 62 of 2009 we dismiss the appeals filed by the assessee for want of prosecution. Assessee is at liberty to move appropriate application for recall of the order, if permissible under the law.
Instruction No.1979 dated 27.3.2000, provided that no appeal would be filed before Tribunal if the tax effect was less than Rs.1.00 lacs, and thereafter Instruction dated 17.7.2003 clarified that monetary limit/tax effect mentioned in the Circular has to be read as revenue effect which would mean tax, interest, penalty. Further, vide circular dated 24.10.2005 CBDT enhanced monetary limit for filing appeal before the Tribunal to Rs.2.00 lacs and vide Instruction No.16.7.2007 it was clarified that the tax effect would mean tax only and no interest. CBDT by subsequent Instruction No.5 of 2008 dated 15.5.2008 clarified that the tax effect would also mean notional tax effect in cases of losses.
he charging of interest is compensatory in nature. If a tax demand raised by the Assessing Officer is varied by an appellate or revisionary authority, it is the appellate and revisional order and not the assessment order, that would hold the field under the doctrine of merger and, hence, fresh notice of demand is to be issued accordingly. An increase in tax liability would correspondingly reduce the amount refundable and also the interest payable on such reduced refund. Provisions of section 244A(3) clearly cover such a situation. If the contention of the assessee is accepted, it would lead to irrational and absurd consequences, which would make the provisions of section 244A(3) inoperative and redundant. The Assessing Officer merely gave effect to these relevant and clear provisions of the Act.
