The undisputed fact in the present case remained that the tax on the entire income received by the assessee was required to be deducted at appropriate rates by the respective payers u/s 195(2) of the Act. Had the payer made the deduction of tax at the appropriate rate, the net tax payable by the assessee would have been Nil. Thus there was no liability to pay advance tax by the assessee.
Even if the contract was considered to be a turnkey contract, entire contract revenue could not be taxed in India but only so much of the profit as was attributable to the PE India was liable to Indian taxation.
The Ld DR argued that the Assessing Officer had rightly disallowed the exemption u/s 10B of the Act as the assessee had not filed prescribed audit report and had got software developed from outside. He further argued that assessee had not filed certified copies of invoices.
The finding of the AO is that expenditure incurred by the head office will have to be allocated to the Indian offices. There has been no allocation made by the assessee. The income is being offered for tax on cost plus basis, therefore, the general and administrative expenditure incurred by the head office for running India offices has to be considered for working out the cost base.
On perusal of records, it was found that the assessee has filed detailed objections on selection of two comparables. But the D.R.P. has not made any reference in the impugned order about the objections of the assessee. Thus, the order of the D.R.P. cannot be termed as a speaking order. The said order deserves to be set aside to file of DRP for fresh adjudication.
The assessee had not deducted tax at source on the ground that the depositors intended to file form No. 15G/15H in time but Form No. 15G/15H were not filed by the date on which the interest was credited/paid to the depositors. In section 40 the word shall not be deducted in computing the income chargeable under the heads Profits and gains of business or profession have been employed.
In the case of the assessee, it is clear that a precise and definite information was received by the Assessing Officer regarding receipt of accommodation entries in respect of capital from various persons aggregating to Rs. 14.45 lakhs. He compared the information with the information available in the return of the assessee.
The main claim in the present year is a sum of Rs. 14,50,123 which represents interest expenses on the loans used for construction of the building and which according to assessee deserves to be allowed under section 24(b) of the Income-tax Act, 1961 against the rental income.
Employees’ contribution towards PF paid by the assessee before the due date of filing of return u/s 139(1) of the Act for the assessment year under consideration is admissible.
In determining whether there has been diversion of income by overriding title, it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of this income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee.
