In respect of a taxpayer to whom the double taxation avoidance agreement applies, the provisions of the Indian Income-tax Act shall apply to the extent they are more beneficial to that taxpayer. In other words, if the provisions of DTAA are more beneficial to the taxpayer, then the provisions of DTAA would prevail over the Indian Income-tax Act. Since the DTAA is silent about the surcharge and education cess for the purpose of deduction of tax at source, this Tribunal is of the considered opinion that the taxpayer may take advantage of that provision in the DTAA for deduction of tax. The CIT(A) has only deleted the tax component to the extent of surcharge and education cess at the rate applicable under the DTAA. Therefore, this Tribunal do not find any infirmity in the orders of lower authority. Accordingly the same are confirmed.
It is settled principles of law that in order to avail benefits under the beneficial provision, the conditions provided by the legislature has to be complied with. Therefore, this Tribunal is of the considered opinion that in view of the mandatory provisions contained in section 139(1) r.w.s. 80A(5) of the Act it is mandatory for every cooperative society for claiming deduction u/s 80P to file the return of income and to make a claim of deduction u/s 80P of the Act in the return itself. In view of the above discussion, if the return was not filed either u/s 139(1) or 139(4) or in pursuance of notice issued u/s 142(1) or u/s 148, the taxpayer is not entitled for any deduction under section 80P of the Act.
In the case before the Kerala High Court, the question arose for consideration was whether a transport contract for mere carriage of goods without loading and unloading facility would amount to carrying out any work within the meaning of section 194C(1) of the Act.
The taxpayers have deposited the amount in the fixed deposit in State Bank of Travancore, Pettah Branch, Trivandrum. The amount was not deposited in the capital gain bond. The claim of the taxpayers before this Tribunal is that the money was intended to be deposited in the capital gain bond. However, the bank deposited the amount in the fixed deposit. We are unable to accept the claim of the taxpayers. The legislature has framed the scheme for the purpose of giving exemption from the capital gain tax by asking the taxpayer to deposit the amount in the capital gain bond scheme. Therefore, if the taxpayer wants to take benefit of the scheme the money has to be deposited in the capital gain bond. Deposit of money in the fixed deposit cannot be construed as deposit in the capital gain bond. If at all there was any negligence on the part of the bank then it is open to the taxpayer to claim damages against the bank for the negligence, if any, committed by the officials of the bank. However, under the Income-tax Act, since the money was not deposited in the capital gain bond, the taxpayers are not eligible for exemption at all. Therefore, the orders of lower authorities are confirmed.
From the above judgment of the Apex Court it would be abundantly clear that there should be a systematic instruction to the students by way of normal schooling. Mere coaching classes may provide some kind of knowledge to the students. But that kind of acquisition of knowledge through coaching classes cannot fall within the meaning of “education” as provided in section 2(15) of the Act. As the Apex Court observed, one may acquire knowledge in the course of travelling; during the course of reading newspaper; etc. But that kind of knowledge cannot fall within the term “education” as provided in section 2(15) of the Act. There should be a normal schooling by way of regular and systematic instruction.
There is no dispute with regard to the fact that the assessee herein is a IATA agent and it is authorised to sell air tickets at a price range that are usually fixed by the airline companies. It is also a fact that the competition between different airline companies has increased due to presence of a number of airline companies and the same has resulted in fixation of ticket rates at different levels at different points of time. Accordingly, it appears that the IATA agents are given option to fix the ticket rates within the maximum and minimum range that are fixed by the airline companies.
The scheme frame by the CBDT clearly says that where the return was filed electronically with digital signature the acknowledgment generated electronically shall be evidence for filing of the return. Wherever, the return was filed electronically without digital signature, on successful transmission, the computer shall generate acknowledgement in form ITR-V.
We have carefully gone through sec. 36(1)(viia) of the Act. The deduction under that section is allowed in respect of any provision for bad and doubtful debts made by the assessee. Hence, the condition for allowing any deduction is the creation of any provision for bad and doubtful debts, which can only be created in the books of accounts maintained by the assessee. Since the assessee has claimed the sum of Rs.32,72,731/- without making any provision as stated in sec. 36(1)(viia) of the Act, we are of the view that the tax authorities are justified in disallowing the same.
A combined reading of the provisions of sub sec. 7 of sec. 80-IA and sec. 80AB would suggest that (a) the Profits and gains of an eligible business, to which the provisions of sec. 80-IA(1) shall apply, shall be restricted to the amount of income of that nature that is included in the Gross total income and
Business of the taxpayer is banking and the business connection between the tenant and taxpayer has nothing to do with banking operation carried on by the taxpayer. Further, the Kerala High Court in Kottayam District Co-operative Bank Ltd. v. CIT [1991] 188 ITR 568 has also taken a similar view. Therefore, this Tribunal is of the considered opinion that the taxpayer is not eligible for deduction u/s 80P(2)(a)(i) in respect of rental income.
