Compensation including interest on cancellation of contract not taxable in the absence of Permanent Establishment of the non-resident in India under India-UK tax treaty
S. 115 JB can only come into play when the assessee is required to prepare its profit and loss account in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act. The starting point of computation of minimum alternate tax u/s 115 JB is the result shown by such a profit and loss account.
In the light of the above decisions, it can now be concluded that orders of CIT which set aside assessment orders on the ground that they are erroneous (due to non application of mind, etc) without recording any finding to show as to how the said assessment order is erroneous or prejudicial to the interest of revenue (without rejecting the claim of the taxpayer) are bad in law and liable to be quashed.
Though the damages included an element of interest, the same is not assessable because in a decree or arbitration award, the amount loses its original character and assumes the character of a judgment debt. In substance, interest partake the character of the compensation and is not assessable as interest. Islamic Investment 265 ITR 254 (Bom) followed.
The assessee, a charitable trust, filed a return claiming exemption u/s 11 in respect inter alia of a receipt of Rs. 35.70 crores on sale of property. The audit report in Form 10B was not filed with the return. During the assessment proceedings, the assessee’s trustee gave a statement u/s 131 to the AO in which he stated that no audit report u/s 10B was obtained.
The assessee, a hotel, incurred expenditure on acquiring licenses and permissions from various government bodies. This was classified as “goodwill” in the books and depreciation was claimed on the ground that it was an “intangible asset” u/s 32(1)(ii). The AO allowed the claim. The CIT passed an order u/s 263 in which he took the view that the AO had not applied his mind to the issue and that the order was “erroneous & prejudicial to the interests of the revenue”. The CIT set aside the assessment order and directed the AO to pass a fresh order. On appeal by the assessee, HELD allowing the appeal: (i) The CIT had not recorded any finding to show how the assessment order was erroneous and prejudicial to the interest of the revenue. Merely because the AO had not examined whether the approvals / registrations etc. amounted to intangible assets and had not applied his mind to the examination and verification of the allowability of depreciation on intangible assets did not mean that the assessment order was erroneous and prejudicial to the interests of the revenue. It was not the case of the CIT that depreciation was not allowable on such items ofintangible assets; (ii) An authority exercising revisional power cannot direct the lower authority to complete the assessment in particular manner. UOI vs. Tata Engineering AIR 1998 SC 287 followed; (iii) On merits, approvals/registrations etc amount to “intangible assets” and entitled to depreciation u/s 32(1) (ii).
In this case the ITAT has held that the agreements entered into by the assessee, viewed together in their entirety, pertain to a single transaction of purchase of assets. Accordingly, the amount paid for non-compete fees was considered to be for acquisition of a business and capital in nature. The ITAT has also observed that each case would need to be decided in the background of its peculiar facts and circumstances. Thus, if the facts in another case are different (e.g. in the case of a continuing business) it may be possible to distinguish the ruling of the ITAT.
An important proposition reiterated by this ruling is that conversion of UTI units into Tax free bonds would not be treated as transfer for the purpose of section 45 of the ITA. This principle laid down by the Tribunal is important as similar logic could apply to „conversion? of other forms of instruments, e.g. conversion of preference shares to equity shares for which there is no specific exemption under the law.
Income-tax Appellate Tribunal , in the case of DDIT v. Nederlandsche Overzee Baggermaatschappiji BV. has analysed whether the lease of a dredger would be considered a bare boat charter or a wet lease. After analysis of the facts of the case, it held that the lease was a bare boat lease, and that a dry lease of equipment does not result in a permanent establishment.
ITAT Mumbai in the case of Satellite Television Asia Region v. ADIT held that the Assessing Officer cannot consider the assessee a Permanent Establishment blocker or conduit company when there are commercial reasons for its existence. This means that they cannot tax the entire advertisement revenues in the hands of parent company.
