In a case where the partnership deed does not specify the remuneration payable to each individual working partner but lays down the manner of fixing the remuneration, would the assessee- firm be entitled to deduction in respect of remuneration paid to partners?
In a case where a company is dealing in the sale and purchase of shares, prima-facie the profits derived from the sale and purchase of shares would be treated to be business income of the assessee since the assessee is a trader in shares, that does not mean that a trading firm cannot make long term investment in shares and income from sale of such shares may fall under the head of capital gains but when a trading firm is involved the onus would be heavily on such a firm to show that this investment was actually a long term investment.
The concept of sub-contract is intrinsically linked with section 194C(2); if there is no sub-contract then the person making payment is not liable to deduct tax at source even if payment is being made to a resident.
Recently, the Himachal Pradesh High Court in the case of CIT v. Maggronic Devices Pvt. Ltd. [2009-TIOL-568-HC-HP-IT] held that payment made by the taxpayer to a Singapore company for outright purchase of plant and product knowhow cannot be considered as ‘Royalty’ within the provisions of the Income-tax Act, 1961. Accordingly, no tax was required to be deducted while making payment to the Singapore company for acquiring such know-how outside India.
Himachal Pradesh High Court holds that Outright purchase of plant knowhow in the form of technical / engineering data, design, drawings etc. is not royalty / fee for technical service, subject to withholding taxes
Even if it is accepted that by a transfer of shares u/s 2(47), there is a transfer in the right to use the capital assets of the company, still s. 170 is not attracted because there is no “transfer of business”. A company is a juristic person and owns the business. The share holders are not the owners of the company. By a transfer of the shares, there is no transfer so far as the company is concerned.
