The other point considered by the authorities below marring the benefit u/s 72A(1) is that the assessee company failed to lead evidence that the amalgamation was to ensure the revival of the business of the amalgamating company. Objections of the AO in points nos. (iii) and (iv) of para 3 of this order about the violation of the conditions prescribed in Rule 9C are also related to this very aspect of the matter. The case of the AO is that the assessee failed to substantiate the steps taken by it to revive business of BTPU and further it did not satisfy the twin conditions as per rule 9C, being, achieving the stipulated level of production of at least fifty percent of the installed capacity of BTPU and furnishing certificate in Form no. 62.
After considering the rival submissions and perusing the relevant material on record it is observed that the due date for filing the return of income by the assessee under section 139(1) for the relevant year is 30.11.2006. The AO has drawn a chart at page-4 of the assessment order showing the dates of actual deposits and due dates for the said contributions of EPF and ESIC.
A perusal of the assessment order clearly shows that Smt. Madhumita Paul, had been summoned under section 131 of the Act and her statements have been recorded. It is shown in the statements recorded that Smt. Madhumita Paul did do work at the business premises of the assessee firm.
Assessee, in fact, was enjoying possession of the impugned property and for peaceful vacation thereof it had received the impugned amount which was described by both parties as amount paid for surrender of tenancy rights. The assessee had acquired the said right long back and the licensor to the assessee also had recognised the said right of the assessee.
The explanation to section 4 of the Act defines dominant position to mean a position of strength enjoyed by an enterprise in the relevant market in India which enables it to operate independent of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour. On examining the dominant position of the OP, it was seen that the OP had no legal existence in India and did not engage in any business in India. Further, the relevant market was fragmented with many players engaging in the activity of production/ manufacture of ARV drugs in India. Accordingly, the OP was not a dominant player in the relevant market in India and therefore, no abuse as envisaged under section 4 of the Act could exist.
In the instant case, it is not in dispute that the demolition of the building took place at the behest of the assessee and it is not an act of God in which event, it has to be said that demolition of house would fall within the definition of ‘transfer’. This aspect was not properly analysed by the ITAT in the case of co-owner since the subsequent decision of Hon’ble Supreme Court in the case of Grace Collis (supra) was not brought to the notice of the Co-ordinate Bench. Since this aspect was not looked into by learned CIT(A), we deem it fair and reasonable to set aside the matter to the file of learned CIT(A) who is directed to reconsider the matter in accordance with law in the light of our above observations.
We further note that in this case the loan agreement was for fixed rate of interest. The LIBOR has been accepted in decision referred above as the most suitable bench mark for judging Arms’ length price in case for foreign currency loan. Hence, adjustment as made by the TPO is not warranted.
The case of the assessee is that the assessee being an actor-model rendered modelling services for marketing the products of the assessee-payer of the fee. The services since not rendered for production of cinematographic film, the impugned payments are outside the scope of section 194J of the Act. Taking analogy that the “stunt actor” is not an actor, the modelling actor is also not an actor. The definitions and notifications ought not to be extended to cover the modelling services of this kind. These modelling services are not notified by the Central Board of Direct Taxes for the reasons better known to them. Therefore, the fee received directly by the Matrix India-a front company, on behalf of the Ms. Katrina Kaif, who modelled for marketing of the camera-products of the assessee-Kodak, does not constitutes professional services as the said modelling/acting is not done in relation to production of cinematographic film and she is not an actor for this purpose of section 194J of the Act.
In the present case, the income tax return of the donor namely Dr. Chitranjan Jain and his wife Nisha Jain was filed before the Assessing Authority. No finding has been recorded by Assessing Authority or the CIT Appeal or the ITAT that return filed by Dr. Chitranjan Jain and the Nisha Jain were fake, fabricated or false one. Once genuineness of return is not in dispute then there appears to be no reason to disbelieve that the amount was paid by Dr. Chitranjan Jain.
Notice of dismissal was issued on 29-2-2012 to show cause as to the reason why appeal of the appellant should not be dismissed for non-compliance with the stay order.
