Article 3(2) in most of the Treaties including the India-USA DTAA provides that any term not defined in the Convention shall unless the context otherwise requires, have the meaning which it has under the laws of that State concerning tax to which the Convention applies.
It is clear that in the case of Wipro Ltd. (supra), the assessee has contended that the payment was made for subscription for a journal or a magazine of a foreign publisher which is similar to the facts of the case in hand where the assessee has also claimed that the payment is towards subscription to online fashion magazine. The Assessing Officer has held that the payment is towards royalty whereas the Commissioner of Income Tax(Appeals) has straightaway decided the issue by holding that the payment is not for transfer of right to use in the copyright as held by the Tribunal in the case of Wipro Ltd. (supra).
Where neither the TPO nor the DRP have found any fault with audited segmental accounts, the Departmental Representative cannot Canvass rejection of the same before the ITAT on the ground that the same one not prepared or audited as per ICAI guidelines.
On perusal of orders of authorities below, we agree that facts and issue involved in Ground No.2 of appeal for assessment year 2009-10 are identical to ground No.2 & 3 of appeal for assessment year 2008-09, which we have discussed in paras 7 to 9 hereinabove. For the reasons mentioned in para 9 hereinabove, we allow Ground No.2 of appeal taken by the assessee for assessment year 2009-10.
We are not convinced with the submission made by the learned AR in this regard for the reason that as per the mandate of Article 7, the deduction is to be allowed in conformity with the provisions of the Income-tax Act, 1961. Once section 44C is there, there can be no escape unless it is proved that the expenses incurred are not covered within the mandate of section 44C of the Act.
The provisions of Rent Control Act can be applied only in case of bonafide letting out of properties and not in case of colourable transactions which are only an arrangement to reduce tax liability. In this case the company had let out the property to the daughter of the director who controlled the company and is responsible for taking all decisions Instead of letting out the property at market rate which is very high, the director had let out property to her daughter at a very low rent, obviously to reduce tax liabilities. Therefore, in our view, the provisions of Rent Control Act can not be applied to such arrangements.
It is obvious that when the assessee revised its return and claimed deduction under section 44C at higher level than that claimed in the original return, it was the duty of the Assessing Officer to consider the higher claim under section 44C and not to restrict himself to the claim made in original return. Any absurdity in the direction of the Commissioner (Appeals) to the Assessing Officer to consider deduction under section 44C on the basis of revised return subject to verification of the correctness of the revised return.
Section 37(2) inter alia provided for disallowance of entertainment expenses. The said provision has been omitted with effect from 01.04.1998. The fact of this omission is that from assessment year 1998-99 no disallowance in respect of entertainment can be made if the expenses are otherwise incurred for the business purposes.
When the objections filed by the assessee were allowed to be withdrawn on the ground that the assessee intend to exercise the option to proceed to file appeal before the Commissioner of Income Tax(Appeals), then there cannot be any direction under sub-sec. (5) in the absence of any objection as required under sub-Sec. (2) of sec. 144C of the Act.
Unless the foreign remittances are credited in the account of assessee or at least credited in the account of the bank, it can not be said that the export proceeds have been received in or brought into India. The assessee has placed on record a certificate from State Bank of India which only states that the proceeds of the foreign remittances had been credited to the account of the assessee.
