Conduct of ACIT10(1) Mumbai as well as CIT10 Mumbai is highly deplorable. Once the jurisdiction to assess the petitioner was transferred by the CIT10 Mumbai from ACIT10(1) Mumbai to DCIT Circle1(2) Pune by order dated 22.11.2011 it was totally improper on the part of ACIT10(1) Mumbai to request the CIT¬10, Mumbai to pass a corrigendum order with a view to circumvent the jurisdictional issue.
Appellant had sought higher deduction of tax at source by annexing TDS certificates and not reflecting the income as shown in the TDS certificates in its return of income. The Tribunal on consideration of all facts had come to the conclusion that remanding the matter to the Assessing Officer would not serve any purpose, as the appellant had consciously claimed credit of tax deduction on the basis of the TDS certificates and even enclosed the same along with the return of income, but failed to show it, as a part of the income.
An assessee that engages itself only or predominantly in activities relating to its ancillary or incidental objects which do not relate to any charitable purpose and does not carry on any activity relating to its main object which pertains to a charitable purpose is not entitled to an exemption under Section 11. A view to the contrary would lead to the most startling results.
In the case before us also, technical services were rendered by Toyo through the medium of the said technicians. It is not the assessee’s case that the technicians were not answerable to Toyo. Nor is it the assessee’s case that there was a separate agreement between the technicians and itself and that the only role played by Toyo was the provision of technicians and not the rendering of technical services through them.
During the course of the proceedings before the Tribunal the revenue contended that the borrowings on which the interest has been claimed as a deduction are in fact capital of the assessee and brought only under the nomenclature of loan for tax consideration. It was the case of the appellant-revenue before the Tribunal that debt capital is required to be re-characterized as equity capital.
Our conclusion is based on the fact that the assessee has not established that the termination of the distributorship agreement has resulted in a loss of source of income or has affected its trading contract. This was not even the assessee’s case before the authorities before whom it was contended that the receipt was in the nature of a gift or akin to a gift.
In other words, though the assessee had paid tax of Rs.50.00 lakhs, since the assesses was entitled to reimbursement of Rs.35.00 lakhs from the Company, the salary income (Rs.77.00 lakhs) received by the assesses had to be enhanced by Rs.35.00 lakhs only and not the balance Rs.15.00 lakhs which is paid by the assesses from the salary income. In these circumstances, the Tribunal was justified in holding that the tax amounting to Rs.15.00 lakhs paid by the assessee from the salary income (not reimbursed by the company) could not be added to that income of the assessee. Accordingly the first question cannot be entertained.
Section 269UA(f) does not operate differently merely because the licencee under different agreements is the same. It is always open to a licensor and a licencee to enter into different agreements for different periods. There is nothing in the above provisions that warrants the periods under the various agreements being clubbed.
Where a benefit of deduction is available for a particular number of years on satisfaction of certain conditions under the provisions of the Income Tax Act, then unless relief granted for the first assessment year in which the claim was made and accepted is withdrawn or set aside, the Income Tax officer cannot withdraw the relief for subsequent years. More particularly so, when the revenue has not even suggested that there was any change in the facts warranting a different view for subsequent years.
While considering/deciding the stay application under the said Act, the authority must (i) briefly state the case of the party; (ii) consider whether the party has made out a case for unconditional stay; (iii) the financial difficulty if pleaded be considered and (iv) in case the authority concerned comes to the conclusion that by granting of stay the assessee is likely to defeat the claim of the department then brief reasons for the same be indicated.
