In the instant case effect of the issue of right shares vis-a-vis original shares had not been fully kept in proper perspective by the Tribunal in its evaluation. Further the assessee was the chairman of the company and in fact that if he did not participate in buying right shares, that would have adverse effect on the value of the shares of the company
SUPREME COURT OF INDIA Commissioner of Income-tax versus Associated Industrial Development Co. (P.) Ltd. K.S. HEGDE AND A.N. GROVER, JJ. CIVIL APPEAL NO. 1929 OF1968 SEPTEMBER 7, 1971 JUDGMENT Grover, J. —This is an appeal by special leave from a judgment of the Calcutta High Court in an income-tax reference. The assessee is a private […]
The assessee has made the payment for availing e-mail infrastructure, which is owned by the parent company. It is using this e-mail infrastructure facilities for communication between its employees and outside business partners. Such facilities of secured internet facilities facilitates the day-to-day business operation of the assessee and does not bring into existence any enduring benefit or creation of a new asset to the assessee.
In the present case, the records reveal that the assessee was specifically queried regarding the nature and character of the one-time regulatory fee paid by it as well as the bank and stamp duty charges. A detailed explanation in the form of statements and other documents required of by the Assessing Officer were produced at the stage of original assessment.
Letting out of the plant, machinery or furniture and the premises constituted a single, composite and inseparable letting is based on the tests laid down by the constitution bench of the Supreme Court in the case of Sultan Bros. (P.) Ltd. (supra).
There was neither any other contrary view nor the assessee brought on record any material controverting the findings of the Assessing Officer in this regard. Accordingly, the finding of the Assessing Officer that amount received by the assessee had to be taxed as business profits in terms of the provisions of Article 7 of the DTAA, read with section 44D and section 115A is confirmed and upheld.
A reading of the provision of section 37(3A) to (3D) indicates that where the expenditure or as the case may be, the aggregate expenditure incurred by an assessee on any one or more of the following; i.e. (i) advertisement, publicity, sales promotion (ii) running and maintenance of air craft and motor cars and (iii) payments made to hotels exceeds Rs. 1 lakh 20 per cent of such excess shall not be allowed as deduction in computing the income chargeable under the head ‘profits and gains of business or profession’.
The words used in s. 254(2) are ‘shall make such amendment, if the mistake is brought to its notice’. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision.
Perusal of the assessment order passed by the Assessing Officer does not show any application of mind on his part. He simply accepted the claim of the assessee with regard to the issues considered by the CIT. This is a case where the Assessing Officer mechanically accepted what the assessee wanted him to accept without any application of mind or enquiry.
In view of this circumstance, that the assessing officer chose to treat the income under some other head cannot characterize the particulars or reported in the return as an inaccurate particulars or as suppression of facts.
