Purchase of a license to use shelf/shrink-wrapped software is purchase of a product and not a copyright. Wherever the Government of India intended to include consideration for the use of software as ‘Royalties’, it explicitly provided so in the DTAA with the concerned country (e.g. India-Malaysia DTAA).
The ITAT Mumbai in the above cited case held that raising of invoices per se doesn’t result in accrual of income rather an income can be considered to have been accrued only when there is a corresponding liability of the other party to pay the amount to the assessee and there is realistic probability of realization of the income to the assessee.
As regards applicability of TDS provisions, not two but three views exist on the impugned issue – (i) TDS u/s 194H – which was discussed by AO in the assessment order dt. 18/3/2012; TDS u/s 194C – which was discussed and upheld by AO in the assessment order dt. 18/3/2012; TDS u/s.194A – (which the assessee does not agree with) and not sought to be taken by CIT. Revision of order u/s 263 cannot be done if two views are possible on the issue.
The CIT(A) has recorded a categorical finding on the basis of material placed on record to the effect that all the three conditions regarding identity, creditworthiness and genuineness of the loan creditors were duly established.
Various additions have been made by AO without proper application of mind and has no distant connection with the material on record & third party transactions were added in the hands of the assessee without any basis or material and thus, the AO framed the assessment in a hypothetical way putting the assessee to enormous harassment and inconvenience.
Notice under section 274 of the Act should specifically state the ground mentioned in Section 271(1)(c), i.e., whether it is for concealment of income or for furnishing of incorrect particulars of income. Sending printed form where all the ground mentioned in Section 271 are mentioned would not satisfy requirement of law.
In this case ITAT held that a liberal approach has to be adopted by the appellate authorities, where delay has occurred for bona fide reasons on the part of the assessee or the Revenue in filing the appeals.
ITAT Mumbai that payment made by M/s. BSR & Co to KPMG group professional entities based in Various Countries outside India for Services in relation to taxation matters, independent personal services, assistance in audit, taxation, information technology services, conducing background checks, etc.
In the case of Former Chief Minister of Maharashtra Narayan Rane ITAT Mumbbai held that before holding an order to be erroneous, Ld Pr. CIT should have conducted necessary enquiries or verification in order to show that the finding given by the assessing officer is erroneous, the Ld Pr. CIT should have shown that the view taken by the AO is unsustainable in law.
Service tax collected by the assessee and paid to the government account having no profit element, cannot be included in the gross receipts for computation of income under section 44B of the Act.
