AO observed that the assessee has not included the excise duty in the valuation of closing stock. Under the provisions of section 145A of the Act, the assessee should include the excise duty component of purchase price of raw material while valuing closing stock of raw material, Work-in-Progress (WIP) and finished goods.
This issue is well established that determination of ALP can be made only with regard to international transactions of the assessee with its AE and it cannot be extended to international transaction of the assessee with its Non-AEs. Therefore, the ALP can be worked out only with respect to international transaction of the assessee with its AE. If it is so, it just and proper to restore this issue to the file of Assessing Officer with a direction to verify the calculations submitted by the assessee after giving the assessee reasonable opportunity of hearing and if the aforementioned calculations are correct then the difference being within the safe harbour of +/- 5 per cent, no addition with regard to ALP should be made.
On identical facts in ITA No. 6600/Mum/2011 wherein we have held that penalty cannot be levied u/s. 271(1)(c) when the income is computed as per the provisions of Sec. 115JB of the Act. In that case, we have followed the decision of Hon’ble Delhi High Court in the case of CIT Vs Nalwa Sons Investments Ltd. (2011) 37 ITCL 218 (ITA No. 1420/2009).
We are mentioning even at the cost of repetition that in order to treat any person as permanent establishment within the meaning of paras 5 and 6 of Article-5 of the DTA, it is of utmost importance that such person should first answer to the description of ‘dependent agent’ and then such dependent agent must perform either of the three activities as mentioned in para 5 of Article 5 of the DTA
The first reason assigned by the Director for denying registration to the assessee under section 12A was that the object of the assessee are not for the benefit of general public but for specific members viz., benefit of companies who are engaged in commercial activities to improve their production or profitability. Section 2(15) defines charitable purpose to include relief of the poor, education, medical relief, and the advancement of any other object of general public utility.
These two cross appeals – one by the assessee and the other by the Revenue – arise out of the order passed by the Commissioner of Income-tax (Appeals) on 05.08.2010 in relation to the assessment year 2007-2008. Since common issues are raised in these appeals, we are, therefore, proceeding to dispose them off by this consolidated order for the sake of convenience.
Section 14A has within it implicit notion of apportionment in the cases where the expenditure is incurred for the composite/indivisible activities in respect of which taxable and non-taxable income is received.
It has also been argued that under the provisions of tenancy agreement, assessee had right to bequeath the flat, sub-let/lease it and was also entitled to raise loan against the flat. The assessee had also right to make alteration in the flat and therefore, considering these factors and also the fact that the lease was perpetual, the assessee had to be considered as owner of the flat, entitled to exemption under section 54.
In this view of the situation and after hearing both the parties, respectfully following the aforementioned order we decline to interference in the disallowance uphold by Ld. CIT(A) as the facts are not stated to be different. Accordingly this ground of the assessee for all the years is dismissed.
The submissions made on behalf of the assessee on this issue did not find favour with the learned CIT(Appeals). As regards the emphasis laid by the assessee on the order of Company Law Board, he held that the consent terms in the case of the assessee were agreed by the family as a part of the family settlement and the Company Law Board had simply observed in its order that the parties were prepared to abide by the said settlement. According to the learned CIT(Appeals), the purchase of shares was a result of mutual settlement amongst the family members and the expenditure incurred for this purpose was of personal nature.
