We agree with the view taken by the Tribunal; and the appeal is devoid of any merits. Both the substantial questions raised by the appellant do not involve any substantial question of law and therefore, the appeal is dismissed.
Insofar as question (b) is concerned, it becomes academic as if the eight comparables selected by the TPO are found not to be functionally comparable then the difference between the operating margin of the respondent at 15.05% as against the 18.97% of comparable companies being within the range of +/ – 5% the amounts received by the respondent – assessee is within the statutory limits. Therefore, we see no reason to entertain question (b).
That apart, the learned counsel for the assessee has rightly contended that the provisions of section 80IA(5) of the Act applies in computing the profits of an eligible business for the purposes of working out the quantum of deduction for the initial assessment year and for every subsequent year thereafter. The incentive deductions both under section 80 IA and 80 IB of the Act have the concept of initial assessment year in respect of almost all eligible business.
The Ld. CIT DR made efforts to support the order of TPO on obtaining information. While agreeing with his arguments on power of AO/TPO in obtaining information u/s 133(6), on which there is no dispute, what is objected to by assessee is not providing such information to it.
In the present case, indisputably all the participating opposite parties i.e. 28 Part-I firms and 1 Part-II firm quoted an all-inclusive rate of Rs. 66.50 each for the supply of the tendered material. Further, the quantity quoted by the each of the bidders was less than 50% of the total quantity. These facts have not been denied or disputed by any of these opposite parties. Coupled with the facts that the bid documents containing same handwriting, same format with common omissions and commissions of language, past conduct etc., it is safe to infer that such conduct is reflective of meeting of minds or concerted action to establish that the firms have directly or indirectly tried to determine or influence the price of the tender/ project.
On 27 July, 2009, Notification No.24/2009-Service Tax, the Central Government in the Ministry of Finance issued a Notification under section 93(1) of the Finance Act, 1994 exempting the Notification No.24/2009-Service Tax taxable service referred to in section 65(105)(zzg) provided to any person by any other person in relation to management, maintenance or repair of roads, from the whole of the service tax leviable thereon. The earlier Notification was amended on 21 January, 2010 to expand the scope of the exemption to cover, inter alia, the management, maintenance or repair of roads, bridges, tunnels, dams, airports, railways and transport terminals.
The argument of the learned counsel for the respondent-assessee that merely participation of the assessee will not validate the reassessment proceeding if the notice is invalid, is of no help, in view of the fact that the question of validity of notice under Section 147 of the Act is not in issue. The only defect which could be pointed out is that the assessment year was not mentioned in the reasons recorded by the Assessing Officer.
There is another aspect of the matter. The purport of unearned increase is to, in addition to the premium charged by the appellant DDA at the time of granting the lease, entitle the appellant DDA to share 50% of the increase in value of the leasehold rights from the date when the lease was given and till the date of transfer. The transfer of the leasehold rights in the present case, as aforesaid, is under the aegis of this Court. There is no doubt as to the consideration for the said transfer. It is not in dispute that the matter has throughout been pending in this Court on the issue of unearned increase. We are of the opinion that it would be highly unjust and unfair to ask the respondent M/s Aeroshine who though has purchased the leasehold rights at the rates of the year 1983-85, to pay unearned increase to the appellant DDA of the year 2004 or of today.
Prof. Basheer traced the origins of the amended part of section 3(d) in Article 10(2)(b) of European Drug Regulatory Directive, 2004 which defines a “generic medicinal product” as: “a medicinal product which has the same qualitative and quantitative composition in active substances and the same pharmaceutical form as the reference medicinal product, and whose bioequivalence with the reference medicinal product has been demonstrated by appropriate bioavailability studies.
The key words used in Section 40(a)(ia), according to us, are on which tax is deductible at source under Chapter XVII –B. If the question is which expenses are sought to be disallowed? The answer is bound to be “those expenses on which tax is deductible at source under Chapter XVII –B.
