The assessee had also challenged that in the assessment order the AO has not recorded finding that there was concealment of income. He has placed reliance on the decision of Hon’ble Delhi High Court in the case of Madhu Shree Gupta while examining the constitutional validity of sub-sec.1B of section 271(1)(c) has held that the presence of prima facie satisfaction for initiation of penalty proceedings was and remains a jurisdictional fact which cannot be wished away as the provision stands even today, i.e., post-amendment.
Hon’ble Bombay High Court in Amitabh Bachan Corporation Ltd.,(supra) held that whether an expenditure was on revenue account or capital account is required to be examined in the light of the totality of all facts for this purpose. Evidence would be required in the form of documents and accounts and that, by merely looking at the balance-sheet and profit and loss account, one cannot infer the nature of the expenditure. Accordingly, relying upon their decision in Khatau Junkar Ltd. [1992] 196 ITR 55 ,Hon’ble High Court concluded that such an exercise generally cannot be done by way of adjustments to the returns under section 143(1)(a) of the Act.
Case of the revenue is that the intention of the donor apart from the gift deed not to be seen for concluding that it was a corpus donation. On the other hand, case of the assessee is that if discussion between the donor and the donee in the shape of correspondence etc. is seen then it would reveal that donation was made by the donor in order to establish an engineering and a management college in the name of his grand-father. The donor has specifically mentioned in this connection.
We do not think that such can be the interpretation of the concerned words. The words are plain and simple. In order to expose the assessee to the penalty unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By any stretch of imagination, making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars. In the case under consideration it stands established that the issue resulting in the determination of higher income u/s 143(3) was clearly debatable. Respectfully following the ratio of the above judgments which have held that penalty is not imposable on debatable issues or claims/deductions disallowed on account of varying legal interpretations it is held that penalty u/s 271(1)(c) is not imposable in the present case. Accordingly the penalty order u/s 271(1)(c) dated 29.01.2009 imposing the penalty of Rs. 520969/- is quashed.
By Finance Act of 2001, the Parliament enacted section 14A of the Income-tax Act, 1961 with retrospective effect from 1.04.1962. Prior to insertion of sec. 14A, the Revenue had sought to disallow expenditure incurred in relation to exempt income. However, the Hon’ble Supreme Court in the case of Rajasthan State Warehousing Corporation vs. CIT, 242 ITR 450, held that where there was one indivisible business giving rise to taxable income as well as exempt income, the entire expenditure incurred in relation to that business would have to e allowed even if a part of income earned from the business was exempt.
From decision in case of CGG Veritas Services, SA (supra) it is clear that (i) fee for technical services having business PE or fixed place of profession will be assessable under section 44DA, (ii) fee for technical services without having business PE or fixed place of profession will be assessable under section 115A. The Tribunal has further held that fee for technical services from assessment year 2011-12, whether rendered in connection with prospecting for or extraction or production of mineral oil, will be assessable either under section 44DA or under section 115 depending upon the fact whether such receipts are effectively connected with PE or fixed place of profession or not.
The requirement of recording of reasons and communication thereof has been read as an integral part of the concept of fair procedure and safeguard to ensure observance of the rule of law. We may point out that a ‘decision’ does not merely mean the ‘conclusion’. It embraces within its fold the reasons forming basis for the conclusion.[Mukhtiar Singh Vs. State of Punjab,(1995)1SCC 760(SC)].
DCIT v. Sports Station (India) (P.) Ltd. As is apparent from the impugned order, the Assessing Officer did not bring any material on record for holding that the payment of interest at the rate of 15 per cent per annum to unsecured creditors was excessive and how interest at the rate of 12 per cent per annum was reasonable or represented fair market value for the services and facilities.
The assessee is an individual who is the Managing Director of Cadence Design Systems India Pvt.Ltd. For the AY 2004-05, he filed a return of income at `1,75,05,081/- comprising of salary income at `1,02,72,400/- from Cadence Design Systems India Pvt.Ltd. and salary income of `65,97,305/- from Cadence Design System Inc.,USA. The assessee has been granted stock option under an incentive stock option agreement dated17th September, 1993with Cadence Design Systems,USA. During the year under consideration, the assessee sold the stock options and received the sum of `11,36,829/- on sale of such stock options. The same was declared as long term capital gain. The Assessing Officer assessed the same as short term capital gain and also levied penalty under Section 271(1)(c) thereon at `2,50,102/- being the difference between the tax as short term capital gain and tax as long term capital gain on the sum of `11,36,829/-. The learned CIT(A) cancelled the penalty. Hence, the Revenue is in appeal.
Hon’ble Delhi High Court in the case of Vardhman Overseas Ltd. (supra) has observed that section 41(1) has been incorporated in the Act to cover a particular facts situation. Section applies where a trading liability was allowed as a deduction in earlier years in computing the business income of the assessee and the assessee has obtained a benefit in respect of such trading liability in later year by way of remission or cessation of the liability. In such a case, the section says that whatever benefit has arisen to the assessee in the later year by way of remission of the liability will be brought to tax in that year.
