Provisions of section 40(a)(i) as it existed prior to it’s amendment by Finance Act, 2003, with “effect from 1-4-2004 provided for disallowance of payment made to a non-resident only where tax is not deducted at source’ on such payment at source. A similar payment to a resident does not result in disallowance in the event of non-deduction of tax at source, Thus a non- resident left with a choice of dealing with’ a resident for a non-resident in business would opt to deal with a resident rather than anon-resident owing to the provisions of section 40(a)(i).
As regards allegation of Withdrawal of exemption from Import Duty, it has been submitted that import of medical equipment had taken place in 1990 and does not pertain to the period under discussion. The duty exemption was withdrawn citing certain noncompliance, assessee has filed appeal before CESTAT challenging the order of withdrawal and that the assessee has complied with all the terms for exemption. The matter is subjudice before the said Tribunal. However, the machineries imported are used by the Hospital namely remote control X-ray system and whole body C.T. Scan. The exemption is with respect to duty under Customs Act and does not make the assessee non-charitable. It continues to render medical relief.
India does not subscribe to the OECD model; hence, the commentary may have only persuasive value. However, it is needed to examine whether the India office was carrying on any essential and significant part of the activity in the scheme of business of the assessee. The Tribunal concurred with the decision of the case laws relied on by the assessee holding that where the RBI does not find any violation of an condition(s) imposed on its functioning, it shall be presumed to be carrying on preparatory or auxiliary activities until established otherwise. The Tribunal relied on the decision of the HC in the case of UAE Exchange Centre, where it was held that an LO cannot be construed as a PE unless its activities exceeds the permitted activities or the department is able to establish the contrary.
, Hon’ble Calcutta High Court in their decision dated 23.11.2011 ITA no. 302 of 2011 GA 3200/2011 in CIT Vs. Virgin Creations, held that that amendment to the provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 as aforesaid was retrospective from 1.4.2005. The ld. AR pointed out that this is the sole decision rendered by a High Court at the moment on the issue. Following the view in this decision, co-ordinate Bench in their decision dated 11.4.2012 in Piyush C. Mehta Vs. ACIT no.1321/Mum./2009 for the AY 2005-06 and the decision dated 10.5.2012 in ITA no. 717/Bang/2011for the AY 2008-09 in ACIT Vs. M.K. Gurumurthy also held that the aforesaid amendment is applicable retrospectively w.e.f 1.4.2005.
Only grievance of the Revenue is that the amendment brought in the Income Tax Act u/s. 40(a(ia) was only effective from 1.4.2010 and not retrospective in nature. However, we find that in a catena of case laws as mentioned, it has been held that the amendment in section 40(a)(ia) is remedial and curative in nature and has retrospective effect. In this case, admittedly, the TDS deducted was deposited before the date of the filing of the return and under such situation, there cannot be any disallowance u/s. 40(a)(ia). Thus we find that Ld. Commissioner of Income Tax (Appeals) has taken a correct view in the matter, which does not need any interference on our part. Accordingly, we uphold the same.
We have perused form no. 35 i.e. memo of appeal filed by the assessee before ld. CIT(Appeals). In the grounds raised, there is neither any ground nor whisper about not providing sufficient opportunity by AO while framing the assessment. It is further evidenced from the fact that the assessment proceedings commenced on 26- 9-2008 and assessment order has been passed on 10-11-2009 indicating that sufficient time was given to assessee for compliance. Therefore, there is no justification in the averment of assessee before ld. CIT(Appeals) that sufficient opportunity was not given by AO, therefore additional evidence should be admitted. We are constrained to observe that ld. CIT(Appeals) has admitted the additional evidence in a perfunctory manner without appreciating the role of rule 46A and its requirements and verifying assessee’s averments.
From the above note, it is clear that the above equipment primarily include the routers, switches, modems, etc. which are in the nature of input and output support devices which performs the functions including communication and control and, thus, they are computer hardware when they are used along with computer and when their functions are integrated with `computer’. Such devices used as part of the computer in its functions and, thus, it can be termed as `computer’ only, therefore, eligible for depreciation @ 60%. Therefore, also we find no infirmity in the claim of the assessee of depreciation @ 60% of ITG networking equipments.
Assessee has maintained quantitative records wherein full details of newsprint purchased and used are given. The assessee has also explained the reason for excessive wastage before the Assessing Officer. The Assessing Officer, however, without rejecting the contentions of the assessee, relied on the report of the Registrar of Newspapers of India, called for by him u/s 133(6) of the Act. The CIT(A), though accepted that assessee had maintained quantitative records of wastage etc., applied the wastage rate of 7%. On the facts and circumstances of the case we accept the contention of the assessee that the Registrar of Newspaper of India is an authority, entrusted with the job of allotment of quota of foreign newsprint and the actual wastage cannot be compared with fixed standard because of various factors.
The disallowance made by the Assessing Officer and sustained by the learned CIT(A) was challenged by the assessee before the ITAT in an appeal. The ITAT has decided the said appeal in favour of the assessee. Therefore, at present, when the addition itself has been set aside, there cannot be any case for levy of penalty for concealment of income.
Authorities have put the onus on the assessee to prove that the said bank account is bogus. In this regard, assessee has categorically stated that the said account was not opened by the assessee. The bank has not replied to the query of the Assessing Officer. So adverse inference on the assessee cannot be made in this regard. In our considered opinion, interest of justice will be served if the matter is remitted to the file of the Assessing Officer to consider the issue afresh.
