In the instant case, the liability to pay commission Rs. 2,94,701/- has arisen by virtue of sales in the financial year 2004-05 relevant to the assessment year 2005-06. The realization of sale amount in the next financial year will not make much difference as the liability to pay commission had crystallized in the financial year 2004-05 itself after sale. We, therefore, reverse the decision of the CIT(A) on this issue and allow the ground raised by the assessee.
The assessee has made an attempt to suppress the true colour of the payment towards the goodwill by stating that payments were made towards non compete fee, IPR on brand/brand value, etc. In fact the assessee as well as its sister concern M/s. Pentafour Technologies Limited do have a common CEO and the companies are working under a common management. There is interlacing of activities and interlocking of funds.
Apart from arguing that the payments were in the nature of reimbursement of expenses, the assessee has not explained anything about the pricing of the services, for which the so-called reimbursements were made by the Indian subsidiary to the assessee company. It is the case of the assessee that expenses were reimbursed by the Indian subsidiary at par with the invoices issued by third parties.
A reading of the DRP Proceeding Extracts shows that the DRP has not considered any of the objections raised by the assessee in respect of TP matters. They held that the appeal filed by the assessee on some issues are pending before the Commissioner of Income-tax (Appeals) pertaining to the assessment year 2004-05 and, therefore, the issues have not reached finality and for that reason the contentions raised by the assessee for the impugned assessment year 2006-07 are liable to be rejected.
The Chennai Tribunal in the case of Quintegra Solutions Pvt. Ltd., had considered the applicability of Section 28(iv) of the Act in the case of amalgamation. In that case the CIT(A) held that differential amount between share issued and net assets taken over, being balancing figure, did not represent income assessable under Section 28(iv) of the Act. The view of CIT(A) had been upheld by the Tribunal.
When the statements made by the assessees here, later retracted, do not have any evidentiary value, there is no basis in holding that there are materials available before the Assessing Officer to make out cases of escapement of income. A reason must be formed by the Assessing Officer to reopen an assessment on the basis of material or information recognized under law.
Assessee has invested in purchase of new residential house at Rs. 70,80,620/- within the period of two years in which the transfer took place and therefore, the assessee was eligible for deduction u/s 54F(1) of the Act in respect of the said investment out of this deemed long term capital gains. In our considered opinion, the Assessing Officer was not justified in not granting exemption u/s 54F with reference to this investment made by the assessee in computing long term capital gains of the year under consideration.
In the present case, the land owned by the assessee comes within the purview of urban area and the assessee is carrying on agricultural activities on the same. There is nothing on record to show that construction of building on assessee’s land is prohibited.
The term ‘agriculture’ has not been defined in the Act. One must necessarily fall back upon the sense in which it is understood in common parlance. ‘Agriculture’ in its root sense means ‘Agar’ a field and ‘culture’, cultivation of a field which of course implies expenditure on human skills and labour upon land. For growing coconut trees one has to perform basic essential operations which involve expenditure of human skill and labour upon the land.
On the date of issue of notice under section 148 on 31-3-2008 by the Assessing Officer for reopening of the assessment, the earlier view taken by the Assessing Officer in the assessment framed under section 143(3) on 31-3-2006 was supported by the decision of the Supreme Court in the case of HCL Comnet Systems & Services Ltd. (supra), and the decision of Delhi High Court in the case of CIT v. Eicher Ltd. [2006] 287 ITR 170.
