service tax is a Value Added Tax which in turn is a destination based consumption tax in the sense that it is levied on commercial activities and it is not a charge on the business but on the consumer. That, service tax is an economic concept based on the principle of equivalence in a sense that consumption of goods and consumption of services are similar as they both satisfy human needs.
Payment has been made for architectural consultancy in connection with forging shed, lab construction and site visits. Thus the services were clearly linked towards activity in capital field. Even the consultants bill has been made. by narrating that ‘assuming total cost of civil works 20 lacs @ 3% = Rs. 60,000/-. On this amount service tax has been added. Thus we find that authorities below are correct in holding that this expenditure falls in the capital field. Excise duty and sales tax cannot form part of the turnover for the purposes of section 80HHC. Section 80HHC is governed by section 80AB and unabsorbed losses of earlier years u/s 72 have to be set off in computing eligible profits for the purposes of section 80HHC.
The law laid down in the Dilip Sheroff case as to the meaning of word ‘concealment’ and ‘inaccurate’ continues to be a good law because what was overruled in the Dharmender Textile case was only that part in Dilip Sheroff case where it was held that mensrea was a essential requirement of penalty u/s 271(1)(c). The Hon’ble Apex Court also observed that if the contention of the revenue is accepted then in case of every return where the claim is not accepted by the AO for any reason, the assessee will invite the penalty u/s 271(1)(c). This is clearly not the intendment of legislature
The Supreme Court in view of the facts of the matter analyzed the Sale of Goods Act, 1930 [SGA] and ISA and held that, the true and real meaning of a document needs to be ascertained to answer whether a contract for sale of movable property amounts to conveyance, and if yes, whether stamp duty is chargeable. The Supreme Court held that the essence of sale is the transfer of the property in a thing from one person to another for a price. As per Section 4 of the SGA, the contract of sale includes an agreement to sell and it may be absolute or conditional. The essential feature that distinguishes a contract of sale from an agreement to sell is that in a contract of sale the property in the goods is transferred from the seller to the buyer immediately whereas in an agreement to sell, the property is transferred at a future date. Further, an agreement to sell becomes a sale on fulfillment of the conditions of the agreement or when the time provided lapses. Under Sec. 2(10) of ISA, inter alia, every document by which movable property is transferred is ‘conveyance’. In a contract, if all the essential conditions of transfer of movable property are transferred, and it amounts to conveyance within the meaning of the said Sec 2(10) it is chargeable to stamp duty under Article 23 if there is no exemption from payment of stamp duty under Article 62 of ISA. The Supreme Court also observed that just because a contract document contains a clause on security, does not make the document a ‘Security Document’.
Brij Lal & Ors Vs. CIT (Supreme Court) (1) Sections 234A, 234B and 234C are applicable to the proceedings of the Settlement Commission under Chapter XIX-A of the Act to the extent indicated hereinabove. (2) Consequent upon conclusion (1), the terminal point for the levy of interest under section 234B would be up to the date of the order under section 245D(1) and not up to the date of the Order of Settlement under section 245D(4).(3) The Settlement Commission cannot re-open its concluded proceedings by invoking section 154 of the Act so as to levy interest under section 234B, particularly, in view of section 245I.
Recently, the Mumbai Bench of the Income-tax Appellate Tribunal (the Tribunal) in the case of Cheminova India Ltd Vs ACIT, Mumbai (ITA No. 4865/Mum/05) [13 ITAT INDIA 240 (Mum)]., accepted higher price paid to its Associated Enterprises (AEs) (as compared to unrelated parties) under Comparable Uncontrolled Price (CUP) Method to be the arm’s length price (ALP) based on the economic and commercial justification.
Bangalore bench of the Income-tax Appellate Tribunal (the Tribunal) in the case of ACIT v. K. Mohan & Co.(Exports) (P.) Ltd [2010] 130 TTJ 719 (Bang) held that that profits earned from forward contracts cannot be included in the profits of the business of the undertaking for the purpose of computing deduction under Section 10B of the Income-tax Act, 1961(the Act) .
The Delhi bench of Income-tax Appellate Tribunal (the Tribunal) in the case of DDIT v. Virage Logic International (ITA No. 494(Del) 2010) held that transfer of a computer software by an Indian branch of a foreign company [approved as 100 percent Export Oriented Unit (EOU) by Software Technology Parks of India (STPI)] to its head office is a transaction eligible for claiming tax benefits under section 1 0A of the Income-tax Act, 1961 (the Act).
In a recent ruling Supreme Court (SC) in the case of Ajanta Pharma Ltd. (Taxpayer) (Civil Appeal No. 7518 of 2010) on the issue of deductibility of export profits from the net profit while computing ‘book profit’ for determining minimum alternate tax (MAT) liability under the Indian Tax Law (ITL) ruled that, while computing ‘book profit’, the net profit has to be reduced by the amount of export profits ‘eligible’ for deduction in the computation under the normal provisions of the ITL (normal computation) and not by the ‘quantum’ of deduction under that provision.
In the case of Vikas Road Carriers Ltd. v. ITO [2010-TIOL-417-ITAT-MUM] the Mumbai Bench of the Income-tax Appellate Tribunal (“the Tribunal”), ruled that, in light of the very typical facts of the case, no disallowance could be made under section 40(a)(ia) of the Income Tax Act, 1961 (“the Act”), for non-withholding of tax since the payments to the transporters were less than Rs. 20,000 each, and less than Rs. 50,000 in a year to any party and hence did not attract the withholding tax provisions of section 194C of the Act. The Tribunal relied very heavily on the fact that while the assessee had given details of expenses incurred, the revenue authorities were unable to dispute the assessee’s statement that the expenses in question did not exceed the limit of Rs. 20,000 per payment, and Rs. 50,000 per payee per year.
