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The revenue have not placed any material suggesting that the assessee had any interest either as a lessee or sub-lessee or a tenant in any of the aforesaid 13 premises. The fact that the assessee was allowed use of premises by IISPL in terms of agreement dated 1-12-2008, cannot lead to the conclusion that the assessee had any interest as a lessee, sub-lessee or tenant over the various premises. The right to use any land or building necessarily implies that the assessee must have some interest in the immovable property as a tenant.
In this case Tribunal was wrong in holding that if one profit level indicator of a comparable, out of a set of comparables, is lower than the profit level indicator of the taxpayer, then the transaction reported by the taxpayer is at an arm’s length price. The proviso to section 92C(2) is explicit that where more than one price is determined by most appropriate method, the arm’s length price shall be taken to be the arithmetical mean of such prices. To this extent the appeal is allowed. However, as pointed out above, if this principle is applied to the comparables suggested by the assessee (which have not been rejected by the Transfer Pricing Officer), the arm’s length price suggested by the assessee would yet be acceptable in law. There shall be no orders as to costs.
It is not disputed by revenue that the said lease agreement dt.29.6.2006 entered into by the assessee give rise to a lease in favour of the assessee and no other legal rights in the hospital building are granted to the assessee. As such, the view of the Assessing Officer that the said lease agreement brings into existence an asset of enduring nature is, in our opinion, misplaced. The Hon’ble Apex Court in the case of Empire Jute Co. Ltd. v. CIT [1980] 124 ITR 1 has laid down certain guidelines to determine whether, in a given case, the expenditure incurred is in the nature of revenue or capital expenditure.
On the question as to whether the assessee is entitled to deduction u/s 80IA of the Act on the net interest income on employees loans & advances, interest on margin money and interest income on dues towards income tax refund adjustment from Essar Project Ltd., we are of the opinion that the issue involved in the present case is no more res-integra and is covered by the decision of the Hon’ble Apex Court in the case of Liberty India (supra) wherein it has been held that duty drawback, DEPB benefits, rebates, etc., cannot be credited against the cost of manufacture of goods debited in the profit and loss account for purposes of section 80-IA/80-IB as such remissions (credits) would constitute independent source of income beyond the first degree nexus between profits and the industrial undertaking.
The brief facts leading to above issue are that assessee incurred undisclosed expenditure for furniture, fixture, flooring etc. incurred in respect of Flat No. 501, at 20 Lee Road, Kolkata for asst. yr. 2008-09. The said expenditure was found recorded in RM-1 and RM-2. The expenditure of Rs. 35 lakhs was incurred by the assessee in connection with purchase of furniture of director’s flat at 20 Lee Road on behalf of M/s Fort Projects (P) Ltd. It is pertinent to note that no such addition of Rs. 35 lakhs on account of undisclosed expenditure was made by AO in very first place and this will be clear from perusal of assessment order for asst. yr. 2008-09,
In the case of dredger Hector even though there is no dispute with reference to the examination of the international transactions in this year under the provisions of transfer pricing, while determining the ALP what is required to be considered is whether the price paid has any significant impact on the income. As submitted by assessee, the agreement was entered when the entities are independent and therefore, the price paid can be considered at arms length. Moreover, assessee also justified the price paid is within the permitted range of +/- 5% in both the cases, the fact of which was accepted by the CIT(A).
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In the instant case the dividend earned on shares by the respondent assessee is from its investments in shares out of the respondent-assessee’s own funds. Consequently, the question of invoking Section 14A of the Income Tax Act,1961 to disallow expenditure would not arise.
Respondent assessee was interalia engaged in the business of execution of contracts for erection and commissioning of plants. The Assessing officer disallowed an amount of Rs.16.86 lacs paid by way of reimbursement to sister concerns for payment of salaries to their employees as they were deputed to the respondent assessee. This was disallowed under Section 40(a)(ia) of the Income Tax Act, 1961 (the Act) for failure to deduct tax. In appeal, the CIT(A) upheld the order of the Assessing officer.
The factual matrix or the case is that the assessee had contracted with landlord to take a premise on lease for opening its branch though no formal agreement with the landlord was entered into. Based on the understanding, the landlord had started the construction of the premises as per the requirement of the assessee. Before the construction was completed the assessee came to know of the proposed construction of overbridge over the said property. The assessee was of the view that overbridge will cause hindrance to conduct the business and services.
