In the instant case, as noticed hereinabove, the assessee’s wife though was in possession of technical qualification but the assessee was required to prove conclusively that his wife Smt. Nanda Chhajta was in fact looking after plans for execution work and was taking administrative decisions.
In our considered opinion, exemption under Section 10(23C)(vi) of the Act can be claimed by an assessee without applying for registration under Section 12A of the Act as it is not required to fulfil the conditions mentioned under Section 11 of the Act while claiming exemption under Section 10(23C) (vi) of the Act.
Undoubtedly an order of assessment which has been passed for a subsequent assessment year may furnish a foundation to reopen an assessment for an earlier assessment year. However, there must be some new facts which come to light in the course of assessment for the subsequent assessment year which emerge in the order of assessment.
The Court took into consideration the definition of ‘interest’ under section 2(28A) of the Act and also analysed the contents of two circulars issued by the CBDT, being No. 65 dated 02.09.1971 and the subsequent one dated 22.03.1993 (Circular No. 647)(sic), and confirmed the reasoning of the Tribunal that discounting charges did not amount to interest and was not subject to tax.
In the case under consideration, the assessee placed before the ld. CIT(A), certain additional evidence and admittedly, the said documents were not submitted before the AO. The powers of the CIT(A) in terms of rule 46A to admit fresh evidence, entail an element of discretion which is required to be exercised in a judicious manner.
Section 41(1) is a deeming fiction and seeks to tax receipts or benefit which may not strictly be ‘income’, the burden to prove that a particular benefit or receipt falls within the four corners of the provisions of section 41(1) lies upon the revenue.
In Divi’s Laboratories Ltd.’s case (supra), it was held that commission paid to a non-resident agent for services rendered outside India is not chargeable to tax in India and that hence, no disallowance can be made.
The difference between a write off of a debt as irrecoverable and a provision against the same on account of or for it being bad and doubtful for recovery, is not technical but factual and, further, real and not imaginary.This is more so in view of the express provision of law by way of Explanation to section 36(1)(vii), brought on statute by the Finance Act, 2001 with effect from 01-04-1989.
It is the oft-repeated submission of the counsel that the COD applications are liable to be allowed on the sole ground of pendency of their writ petition before the Hon’ble High Court. No judicial authority has been cited before us in support of the plea. We are of the view that the pendency of the writ petition filed by the appellants who were conscious of the statutory remedy cannot per se constitute a valid ground for condonation of the deliberate delay of over seven years. The appellants have not stated any other valid reason.
We find that, the AO accepts that the assessee is an infrastructure developer. But we look into the main objection of the AO that being a developer by itself is not enough to avail the deduction, but the assessee should have maintained, operated and handed it back to the government.
