It was incumbent on the AO to supply the information to the assessee, obtain its objections, if any, and pass order after taking into account the information and the objections of the assessee. This has not been done in respect of 20 comparables.
The contention of the assessee that return of income in electronic form was not to accompany the report in Form 3 CEB is not correct. The assessee was required to file the report under section 92E, read with rule 10E, before the specified date i.e., the due date for filing of the return.
In our considered opinion. for making any disallowance u/s. 14A is to firstly examine the assessee’s claim of having incurred some expenditure or no expenditure in relation to exempt income. If the AO gets satisfied with the same then there is no need to compute disallowance as per Rule 8D.
There was neither any other contrary view nor the assessee brought on record any material controverting the findings of the Assessing Officer in this regard. Accordingly, the finding of the Assessing Officer that amount received by the assessee had to be taxed as business profits in terms of the provisions of Article 7 of the DTAA, read with section 44D and section 115A is confirmed and upheld.
In the case under consideration, the assessee placed before the ld. CIT(A), certain additional evidence and admittedly, the said documents were not submitted before the AO. The powers of the CIT(A) in terms of rule 46A to admit fresh evidence, entail an element of discretion which is required to be exercised in a judicious manner.
In Divi’s Laboratories Ltd.’s case (supra), it was held that commission paid to a non-resident agent for services rendered outside India is not chargeable to tax in India and that hence, no disallowance can be made.
It to be settled position of law that right of appeal is neither an absolute nor an ingredient of natural justice, the principle of which must be followed in judicial and quasi-judicial adjudication. The right to appeal is a statutory right and it can be circumscribed by the condition in the grant. If a statute gives right to appeal upon certain conditions it is upon fulfilment of those conditions that the right becomes vested in and exercisable by the appellant.
In the instant case the assessee seems to be quite negligent by not taking the necessary steps for filing the appeal within the time prescribed by the statute .The conduct of the assessee reveals that the assessee takes the condonation of delay provision as granted. The assessee did not care to submit any request for condonation of delay , even when it was brought specifically to his notice at the time of filing of appeal itself.
In the instant case, while referring to the proviso in the newly inserted provisions of section 201(3) introduced by the Finance (No. 2) Act, 2009 with effect from 1-4-2010, the Assessing Officer concluded that he was competent to pass such orders for the aforesaid financial years at any time on or before 31-3-2011 while the Commissioner (Appeals), following the decisions of the jurisdictional High Court in CIT v. NHK Japan Broadcasting Corpn. [2008] 305 ITR 137and CIT v. Hutchison Essar Telecom Ltd. [2010] 323 ITR 230 (Delhi) held that the order dated 27-4-2010 passed by the Assessing Officer was barred by limitation.
Merely by depositing the due tax on the amount received on termination of employment the bona fides of the assessee in not declaring the receipt as income in its return of income is not established.
