We find that the undisputed fact is that the premises are trading assets and have been shown as stock-in-trade. No rent has been received in respect of these unsold assets. The income from the properties have been shown and accepted to be taxable u/s 28. Unless specifically provided a notional income cannot be brought to tax. In other words, the concept of real income is applicable to computation of business income unless specifically provided otherwise. The assessee has not earned any income from the stock-in-trade. Therefore, we are of the view that the ld. CIT(Appeals) rightly allowed the relief to the assessee. In the result, this ground is also dismissed.
At the time of hearing, the learned AR submitted that the assessee company has not received assessment order passed by the Assessing Officer u/s 148 r/w section 143(3) for the assessment year 2002-03 as stated by the Assessing Officer that the order was dispatched by speed post on 31st December, 2009. The company received notice u/s 220(1)(i) of the Act for the outstanding payment and thereafter the assessee informed the Assessing Officer that he has not received the order and requested for certified copy.
After 1-4-1989, it is not necessary for the assessee to establish that the debt, in fact, has become irrecoverable. It is enough if the bad debt is written off as irrecoverable in the accounts of the assessee, subject to the provisions of section 36(2) that such debt or part thereof has been taken into account in computing the income of the assessee of the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year. As the appellant has shown the amount of Rs.23,00,894/- (claimed as short recoveries or bad debts written off) as its income in assessment years 2007-08 & 2008-09, the conditions laid down in the provisions of section 36(1 )(vii) read with section 36(2) of the Act have been fulfilled by the appellant. In these circumstances, it is held that the contention of the appellant is correct. The Assessing officer is accordingly directed to delete the addition ofRs.23,00,894/-.
Kirti Realtors Pvt. Ltd. Vs. ITO (ITAT Delhi) – The remand report submitted by AO does not deny the fact that Mr. Jagdish Beniwal was acting as a coordinator for facilitating the purchase of pieces of lands in Alwar for and on behalf of the assessee. It has also not been denied that assessee did not give advance imprest money to him. Mr. Jagdish Beniwal has accepted that he used to assist assessee and thereafter the assessee was dealing with farmers directly. This does not rule out his role as a coordinator till the conveyances were registered. In his statement he has himself accepted having received an amount of Rs. 60,00,000/- from assessee and about the cash disbursement on pertinent question,
ITO Vs. Kuber Chand Sharma, In our considered view, CIT(A) has admitted the additional evidence without fulfilling the categorical conditions laid down in Rule 46A, as explained by Hon’ble Delhi High Court in the case of Manish Build Well Pvt. Ltd.(supra). Consequently, his order on this issue is not tenable, however, the issue of merits remains. Besides, from the record it emerges that the assessee wanted to file only government records and revenue record about crops. In the entirety of facts and circumstances, the interest of justice will be served if the matter is set aside, restored back to the file of AO to decide the same afresh after affording the assessee sufficient opportunity of being heard.
Kuber Mutual Benefits Ltd. Vs. ACIT (ITAT Delhi) – It is not in dispute that assessee company is under liquidation and official liquidator stands already appointed by the order of the Hon’ble Court. As per Companies Act, 1956, no doubt, powers of liquidator which includes the power to defend legal proceedings, civil or criminal are to be in the name and on behalf of the company. Section 178 of the I.T. Act, 1961 recognizes the official liquidator as the concerned person in the case company is under liquidation. Similarly section 2 (7) defines the word assessee. It includes such persons also as assessee who are deemed to be an assessee under any provision of this Act.
Kama Holding Ltd. Vs. ACIT (ITAT Delhi)- Rule 8D has been held to be retrospective in nature and the dis allowance has been worked out by applying Rule 8D. Hon’ble Bombay High Court in subsequent judgment in the case of Godrej & Boyce Mfg. Co. Ltd. Vs. DCIT & Another (2010) 234 CTR (Bom) 1 has held Rule 8D to be prospective in nature. Thus, Rule 8D would not be applicable to the assessment year in question i.e. 2007-08. The Hon’ble High Court, however, has directed that indirect expenses which may be attributable on a reasonably proper basis can only be disallowed.
DDIT Vs. Western Union Financial Services Inc (ITAT Delhi)- ITAT held that the taxpayer’s agents in India were independent agents under Article 5(5) of the India-USA tax treaty (tax treaty). Accordingly, there was no Dependent Agent Permanent Establishment (DAPE) of the taxpayer in India. Further, the Tribunal observed that the taxpayer did not have right to enter and make use of the premises of the agents for its business. Accordingly, it was concluded that there was no fixed place PE of the taxpayer in India as per Article 5(1) of the tax treaty.
Intelsat Corporation Vs. ADIT (International Taxation)- We have considered the facts of the case and submissions made before us. We have already mentioned that there is a distinguishable feature namely that the assessee has received payments from persons residents in India. However, the receipts have been taxed u/s 9(1)(vii), Explanation 2, Clause (vi) thereunder. The decision in the case of Asia Satellite Telecommunications Company Limited is to the contrary and in favour of the assessee. It is also a matter of fact on record that the assessee is a tax resident of USA and, therefore, the provisions contained in the DTAA are applicable.
ITO Vs. JMD Global (P) Ltd. (ITAT Delhi)- Before the ld CIT(A), it was contended by the assessee that all the allottees were in Calcutta and as the notice u/s 133(6) were sent towards the fag end of the time barring period, the same could not be replied by those parties before the assessment order was passed.
