Explanation below section 9(2), as relied on by the ld DR, requiring inclusion of income in the total income of the non-resident whether or not the non-resident has a residence or place of business or business-connection in India or the non-resident has rendered services in India, is applicable only in respect of clauses (v) to (vii). Clause (i) of section 9 has not been included by the legislature within the ambit of this Explanation. It shows that unless a non-resident earns income from business operations carried out in India, such income cannot be deemed as accruing or arising in India. Reverting to the facts of the instant case, it is crystal clear that the assessee rendered “International services” outside India which required the payment in question. If this is the position, which has not even been disputed by the learned Departmental Representative, then there can be no question of roping such income within the ken of section 9(1)(i).
Issue involved in the present case is no more res integra and is covered by the decision of the Hon’ble Apex Court in the case of Topman Exports V/s CIT (supra) wherein it has been held that not the entire amount received by the assessee on sale of DEPB, but the sale value less the face value of the DEPB will represent profit on transfer of DEPB by the assessee. Respectfully following the above authoritative pronouncement of the Hon’ble Supreme Court, we direct the AO to recompute the deduction u/s 80HHC in accordance with the aforesaid judgment of the Hon’ble Apex Court and accordingly the orders passed by the ld.CIT(A) for the above assessment years do not call for any interference.
Hon’ble Supreme Court’s decision in the case of CIT Vs. Lovely Exports [216 CTR 195] wherein their Lordships observed Can the amount of share money be regarded as undisclosed income under Sec. 68 of I.T. Act, 1961? We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their Individual assessments in accordance with law. Hence, we find no infirmity with the impugned judgment
The contention that the provisions of section 56(1)(v) regarding the amount received from the relative was not there before Revenue authorities. Moreover it is to be established that the person who gifted money is assessee’s sister as claimed. It was also to be established that the said sister is working as Dentist in U.K. The audit certificate placed before the CIT (A) with reference to the creditworthiness should have been admitted and examined by the CIT (A) which was not done.
There is no dispute to the fact that as per sec. 251(1) of the Act, the ld. C.I.T.(A) has no power to set aside any matter to the file of ld. A.O. for fresh verification and adjudication. Therefore, considering the fact that some additional evidence was admitted by the ld. C.I.T.(A) and he has set aside some issues to the file of ld. A.O. u/s. 251(1) of the Act, which he is not empowered to do, we deem it proper to set aside the orders of the authorities below and remit the issues to the file of ld. A.O. for fresh adjudication in accordance with law.
In the case of Mukherjee Estate P. Ltd. reported in 244 ITR 1, the Hon’ble Calcutta High Court has held that income on account of display of hoardings on the top of the building for advertisement purposes to display the advertisement is not an income from house property as hoardings do not form part of the building which is income from the house property and other parts of the building.
The contention of the learned Sr.AR to the effect that the Revenue moved rectification application in the year 2011 i.e. after around 3 years from the date of passing of the Tribunal order u/s 254(1), belies the Revenue’s stand of such ground having been in fact taken, is without any force. When section 254(2) provides a period of limitation of four years from the date of passing of the order, it implies that any rectification application moved within this statutory period of four years requires consideration. As the instant application u/s.254(2) is well within the stipulated period, in our considered opinion, there is no justification in not accepting it.
It is observed that the ld. CIT(A) was of the view that since in the quantum appeal, the matter was set aside and sent back to the file of the ld. CIT(A) by the Hon’ble Tribunal vide its order dated 29.12.2010, the penalty order of the ld. AO dated 23.03.2010 will not survive. In fact, the Hon’ble Tribunal in the quantum appeal had restored the matter back to the file of the ld. CIT(A) for deciding the issue afresh. In such circumstances, we are of the considered view that the penalty order should be considered in the light of the quantum appeal decided by the ld. CIT(A). For this reason, we set aside the order of the ld. CIT(A) dated 13.09.2011 and restore the matter back to the file of the ld. CIT(A) to consider the penalty order of the ld. AO in the light of his findings in the quantum appeal.
The applicant is an Accountant Member of the ITAT, Chandigarh who, having joined the employment aforementioned on 25.8.2003, came to be transferred to the ITAT, Chandigarh Bench on 25.10.2010. He has been, vide order Annexure A-I dated 23.1.2012, ordered to be transferred to the Rajkot Bench of the ITAT. The transfer is indicated to have been ordered “in public interest”.
Undisputed facts are that the assessee is a plot society and not a flat society. Thus, notification dated 9th August 2001, issued by Govt. of Maharashtra, does not apply to the facts of the case. The first appellate authority had followed the judgment of Hon’ble Jurisdictional High Court in Sind Co. Operative Housing Society, [2009] 26 DTR 149 (Bom.), and granted relief to the assessee. As all the receipts are admittedly from the members, we have to necessarily uphold the order of the first appellate authority and dismiss the appeal of the Revenue.
