INCOME TAX REPORTS (ITR)
Volume 343 : Part 1 (Issue dated 30-4-2012)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Export --Special deduction--Computation of profits--Sale of DEPB credit--Sale value less value of DEPB--Ninety per cent. of receipt of nature mentioned in Explanation (baa)(1) included in profits alone to be deducted--Ninety per cent. of net interest or net rent, included in profits, and not of gross interest or gross rent, to be deducted--Income-tax Act, 1961, s. 80HHC, Expln. (baa)-- ACG Associated Capsules Pvt. Ltd. v. CIT . . . 89
Business expenditure --Royalty--Tribunal allowing expenses in earlier years--No question of law--Income-tax Act, 1961-- CIT v. Galaxy Surfactants Ltd .(Bom) . . . 108
Charitable purpose --Registration of trusts--Commissioner--Power to cancel registration--Amendment of provision empowering Commissioner to cancel registration granted to trust under section 12A--Valid--Income-tax Act, 1961, s. 12AA(3)-- Sinhagad Technical Education Society v. CIT (Bom) . . . 23
Deduction of tax at source --Non-resident--Permanent establishment--Convention between India and Netherlands treating branch office in India as a separate entity--No obligation on part of branch office in India to deduct tax while making interest remittance to its head office or any other foreign branch--Double Taxation Avoidance Agreement between India and the Netherlands, arts. 5(2), 7(2)--Income-tax Act, 1961, ss. 40(a)(i), 195(1)-- ABN Amro Bank, N. V . v. CIT (Cal) . . . 81
Export --Deduction under section 10B--Loss in eligible unit could be set off against profits of business--Income-tax Act, 1961, s. 10B-- CIT v. Galaxy Surfactants Ltd. (Bom) . . . 108
----Special deduction under section 80HHC--Conditions precedent--Export and receipt of sale proceeds in convertible foreign exchange--No condition that exports must be from India--Assessee purchasing goods from one foreign country and transporting it to another foreign country--Entitled to special deduction under section 80HHC--Income-tax Act, 1961, ss. 80HHC, 80HHE-- Anil Kumar v. ITO (Karn) . . . 30
Interpretation of taxing statutes --Interpretation beneficial to assessee-- Anil Kumar v. ITO (Karn) . . . 30
Recovery of tax --Stay of recovery proceedings--Assessee appointed agent of State Government--Position accepted for assessment years 2003-04, 2004-05, 2005-06--Assessment and demand for tax for assessment year 2006-07--Appeal to Commissioner (Appeals) and application for stay of recovery proceedings--Direction for expeditious disposal of appeal and stay of demand till disposal of appeal--Income-tax Act, 1961-- City and Industrial Development Corporation of Maharashtra Ltd. v. Asst. CIT (Bom) . . . 102
Refund --Refund of income-tax and wealth-tax--General principles--Scope of article 265 of Constitution--Difference between tax collected or paid under statutes declared unconstitutional and tax collected or paid under valid statute but wrong interpretation of statute or wrong determination of facts--Constitution of India, art. 265--Income-tax Act, 1961--Wealth-tax Act, 1957-- Indglonal Investment and Finance Ltd . v. ITO (Delhi) . . . 44
Revision --Jurisdiction--Limitation--Doctrine of merger--Order of assessment does not merge in orders of reassessment as regards issues not forming subject-matter of reassessment--Limitation for revision of assessment order in respect of those issues--Runs from date of assessment order not from date of reassessment orders--Income-tax Act, 1961, ss. 143(3), 148, 263(2)-- CIT v. ICICI Bank Ltd. (Bom) . . . 74
Advance ruling --Value as precedent--Income-tax Act, 1961, s. 245R(4)-- Citrix Systems Asia Pacific Pty. Limited, In re . . . 1
Royalty --Sale or licensing for use of copyrighted software is grant of right to use copyright--Payment therefor is royalty--Non-resident--Appointment of non-exclusive distributor of software products in India--Payment from distributor for sale of software product--Subscription for updates--Payment for subscription advantage programme--Royalty--Indian distributor to withhold taxes in India on payments--Income-tax Act, 1961, ss. 9(1)(vi), 195--Double Taxation Avoidance Agreement between India and Australia, art. 12-- Citrix Systems Asia Pacific Pty. Limited , In re . . . 1 Words and phrases --"Royalty"--"Licence"-- Citrix Systems Asia Pacific Pty. Limited , In re . . . 1
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
Art. 265 --Refund--Refund of income-tax and wealth-tax--General principles--Scope of article 265 of Constitution--Difference between tax collected or paid under statutes declared unconstitutional and tax collected or paid under valid statute but wrong interpretation of statute or wrong determination of facts-- Indglonal Investment and Finance Ltd . v. ITO (Delhi) . . . 44
Double Taxation Avoidance Agreement between India and Australia :
Art. 12 --Royalty--Sale or licensing for use of copyrighted software is grant of right to use copyright--Payment therefor is royalty--Non-resident--Appointment of non-exclusive distributor of software products in India--Payment from distributor for sale of software product--Subscription for updates--Payment for subscription advantage programme--Royalty--Indian distributor to withhold taxes in India on payments-- Citrix Systems Asia Pacific Pty. Limited , In re (AAR) . . . 1
Double Taxation Avoidance Agreement between India and the Netherlands :
Arts. 5(2), 7(2) --Deduction of tax at source--Non-resident--Permanent establishment--Convention between India and Netherlands treating branch office in India as a separate entity--No obligation on part of branch office in India to deduct tax while making interest remittance to its head office or any other foreign branch-- ABN Amro Bank, N. V . v. CIT (Cal) . . . 81
S. 9(1)(vi) --Royalty--Sale or licensing for use of copyrighted software is grant of right to use copyright--Payment therefor is royalty--Non-resident--Appointment of non-exclusive distributor of software products in India--Payment from distributor for sale of software product--Subscription for updates--Payment for subscription advantage programme--Royalty--Indian distributor to withhold taxes in India on payments-- Citrix Systems Asia Pacific Pty. Limited , In re (AAR) . . . 1
S. 10B --Export--Deduction under section 10B--Loss in eligible unit could be set off against profits of business-- CIT v. Galaxy Surfactants Ltd. (Bom) . . . 108
S. 12AA(3) --Charitable purpose--Registration of trusts--Commissioner--Power to cancel registration--Amendment of provision empowering Commissioner to cancel registration granted to trust under section 12A--Valid-- Sinhagad Technical Education Society v. CIT (Bom) . . . 23
S. 40(a)(i) --Deduction of tax at source--Non-resident--Permanent establishment--Convention between India and Netherlands treating branch office in India as a separate entity--No obligation on part of branch office in India to deduct tax while making interest remittance to its head office or any other foreign branch-- ABN Amro Bank, N. V . v. CIT (Cal) . . . 81
S. 80HHC --Export--Special deduction under section 80HHC--Conditions precedent--Export and receipt of sale proceeds in convertible foreign exchange--No condition that exports must be from India--Assessee purchasing goods from one foreign country and transporting it to another foreign country--Entitled to special deduction under section 80HHC-- Anil Kumar v. ITO (Karn) . . . 30
S. 80HHC, Expln. (baa) --Export--Special deduction--Computation of profits--Sale of DEPB credit--Sale value less value of DEPB--Ninety per cent. of receipt of nature mentioned in Explanation (baa)(1) included in profits alone to be deducted--Ninety per cent. of net interest or net rent, included in profits, and not of gross interest or gross rent, to be deducted-- ACG Associated Capsules Pvt. Ltd. v. CIT (SC) . . . 89
S. 80HHE --Export--Special deduction under section 80HHC--Conditions precedent--Export and receipt of sale proceeds in convertible foreign exchange--No condition that exports must be from India--Assessee purchasing goods from one foreign country and transporting it to another foreign country--Entitled to special deduction under section 80HHC-- Anil Kumar v. ITO (Karn) . . . 30
S. 143(3) --Revision--Jurisdiction--Limitation--Doctrine of merger--Order of assessment does not merge in orders of reassessment as regards issues not forming subject-matter of reassessment--Limitation for revision of assessment order in respect of those issues--Runs from date of assessment order not from date of reassessment orders-- CIT v. ICICI Bank Ltd. (Bom) . . . 74
S. 148 --Revision--Jurisdiction--Limitation--Doctrine of merger--Order of assessment does not merge in orders of reassessment as regards issues not forming subject-matter of reassessment--Limitation for revision of assessment order in respect of those issues--Runs from date of assessment order not from date of reassessment orders-- CIT v. ICICI Bank Ltd. (Bom) . . . 74
S. 195 --Royalty--Sale or licensing for use of copyrighted software is grant of right to use copyright--Payment therefor is royalty--Non-resident--Appointment of non-exclusive distributor of software products in India--Payment from distributor for sale of software product--Subscription for updates--Payment for subscription advantage programme--Royalty--Indian distributor to withhold taxes in India on payments-- Citrix Systems Asia Pacific Pty. Limited , In re (AAR) . . . 1
S. 195(1) --Deduction of tax at source--Non-resident--Permanent establishment--Convention between India and Netherlands treating branch office in India as a separate entity--No obligation on part of branch office in India to deduct tax while making interest remittance to its head office or any other foreign branch-- ABN Amro Bank, N. V . v. CIT (Cal) . . . 81
S. 245R(4) --Advance ruling--Value as precedent-- Citrix Systems Asia Pacific Pty. Limited, In re (AAR) . . . 1
S. 263(2) --Revision--Jurisdiction--Limitation--Doctrine of merger--Order of assessment does not merge in orders of reassessment as regards issues not forming subject-matter of reassessment--Limitation for revision of assessment order in respect of those issues--Runs from date of assessment order not from date of reassessment orders-- CIT v. ICICI Bank Ltd. (Bom) . . . 74
ITR'S TRIBUNAL TAX REPORTS (ITR (TRIB))
Volume 15 : Part 4 (Issue dated : 30-4-2012)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Assessment --Limitation--Erroneously passed draft assessment order not to render assessment order time barred-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
Capital gains --Cost of improvement--Charges paid to land development authority for change of ownership of land in revenue records--Nature of, not known--Whether to be capitalised--Matter remanded--Income-tax Act, 1961, s. 48-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
Capital or revenue expenditure --Expenses for acquiring licence to use software--Revenue expenditure-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
Deduction --Expenditure for earning income not liable to tax--Period prior to introduction of rule for determining such expenditure--Disallowance on fair and reasonable basis to be made--Income-tax Act, 1961, s. 10A--Income-tax Rules, 1962, r. 8D-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
Export --Special deduction--Reference to Transfer Pricing Officer for determination of arm's length price--Rules and procedures for transfer pricing matters to be used only for purpose of section 92--Transfer Pricing Officer stating no need for adjustment--Other adjustments to be made independent of order of Transfer Pricing Officer--Section 10A deduction not to be worked out on basis of arm's length price profit generated out of order of Transfer Pricing Officer--Computation of exemption--Adjustments to export turnover also to be made in total turnover--Income-tax Act, 1961, ss. 10A, 92, 92AC, 144C-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
International transactions --Arm's length price--Determination--Selection of comparables--Factors to be considered--Nature of assessee's profile to be first determined--Assessee treating itself as a low end service provider, but Transfer Pricing Officer finding it was high end service provider--Rejection of comparables selected by assessee and fresh selection of comparables--Proper--Filters applied for comparables--Proper--Benefit of five per cent. margin--Not a standard deduction--Income-tax Act, 1961, ss. 92C, 92D, 144C--Income-tax Rules, 1962, rr. 10B, 10D-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
----Arm's length price--Determination--Transactional net margin method--Selection of comparables--Exclusion of loss making and abnormally high profit making companies--Principles--Assessee not charging mark-up on application research services--Activity cannot be clubbed with other activities--Transfer pricing adjustment justified--More than one year's data not to be taken--Unless assessee specifically demonstrates data would influence comparison of transfer price--Comparison of enterprise level profits not proper--Actual margin of servicing segment to be taken--Assessing Officer granting working capital adjustment--No further adjustment necessary--Claim of risk adjustment not to be granted--Direction of Dispute Resolution Panel not to ignore actual mark-up earned by assessee while comparing average mean--Assessing Officer bound to follow--Income-tax Act, 1961, ss. 92CA, 144C(10), (11), (13)--Income-tax Rules, 1962, r. 10B(4)-- Exxon Mobil Company India P. Ltd. v. Deputy CIT (Mumbai) . . . 353
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
S. 10A --Deduction--Expenditure for earning income not liable to tax--Period prior to introduction of rule for determining such expenditure--Disallowance on fair and reasonable basis to be made-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
----Export--Special deduction--Reference to Transfer Pricing Officer for determination of arm's length price--Rules and procedures for transfer pricing matters to be used only for purpose of section 92--Transfer Pricing Officer stating no need for adjustment--Other adjustments to be made independent of order of Transfer Pricing Officer--Section 10A deduction not to be worked out on basis of arm's length price profit generated out of order of Transfer Pricing Officer--Computation of exemption--Adjustments to export turnover also to be made in total turnover-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
S. 48 --Capital gains--Cost of improvement--Charges paid to land development authority for change of ownership of land in revenue records--Nature of, not known--Whether to be capitalised--Matter remanded-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
S. 92 --Export--Special deduction--Reference to Transfer Pricing Officer for determination of arm's length price--Rules and procedures for transfer pricing matters to be used only for purpose of section 92--Transfer Pricing Officer stating no need for adjustment--Other adjustments to be made independent of order of Transfer Pricing Officer--Section 10A deduction not to be worked out on basis of arm's length price profit generated out of order of Transfer Pricing Officer--Computation of exemption--Adjustments to export turnover also to be made in total turnover-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
S. 92AC --Export--Special deduction--Reference to Transfer Pricing Officer for determination of arm's length price--Rules and procedures for transfer pricing matters to be used only for purpose of section 92--Transfer Pricing Officer stating no need for adjustment--Other adjustments to be made independent of order of Transfer Pricing Officer--Section 10A deduction not to be worked out on basis of arm's length price profit generated out of order of Transfer Pricing Officer--Computation of exemption--Adjustments to export turnover also to be made in total turnover-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
S. 92C --International transactions--Arm's length price--Determination--Selection of comparables--Factors to be considered--Nature of assessee's profile to be first determined--Assessee treating itself as a low end service provider, but Transfer Pricing Officer finding it was high end service provider--Rejection of comparables selected by assessee and fresh selection of comparables--Proper--Filters applied for comparables--Proper--Benefit of five per cent. margin--Not a standard deduction-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
S. 92CA --International transactions--Arm's length price--Determination--Transactional net margin method--Selection of comparables--Exclusion of loss making and abnormally high profit making companies--Principles--Assessee not charging mark-up on application research services--Activity cannot be clubbed with other activities--Transfer pricing adjustment justified--More than one year's data not to be taken--Unless assessee specifically demonstrates data would influence comparison of transfer price--Comparison of enterprise level profits not proper--Actual margin of servicing segment to be taken--Assessing Officer granting working capital adjustment--No further adjustment necessary--Claim of risk adjustment not to be granted--Direction of Dispute Resolution Panel not to ignore actual mark-up earned by assessee while comparing average mean--Assessing Officer bound to follow-- Exxon Mobil Company India P. Ltd. v. Deputy CIT (Mumbai) . . . 353
S. 92D --International transactions--Arm's length price--Determination--Selection of comparables--Factors to be considered--Nature of assessee's profile to be first determined--Assessee treating itself as a low end service provider, but Transfer Pricing Officer finding it was high end service provider--Rejection of comparables selected by assessee and fresh selection of comparables--Proper--Filters applied for comparables--Proper--Benefit of five per cent. margin--Not a standard deduction-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
S. 144C --Export--Special deduction--Reference to Transfer Pricing Officer for determination of arm's length price--Rules and procedures for transfer pricing matters to be used only for purpose of section 92--Transfer Pricing Officer stating no need for adjustment--Other adjustments to be made independent of order of Transfer Pricing Officer--Section 10A deduction not to be worked out on basis of arm's length price profit generated out of order of Transfer Pricing Officer--Computation of exemption--Adjustments to export turnover also to be made in total turnover-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
----International transactions--Arm's length price--Determination--Selection of comparables--Factors to be considered--Nature of assessee's profile to be first determined--Assessee treating itself as a low end service provider, but Transfer Pricing Officer finding it was high end service provider--Rejection of comparables selected by assessee and fresh selection of comparables--Proper--Filters applied for comparables--Proper--Benefit of five per cent. margin--Not a standard deduction-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
S. 144C(10) --International transactions--Arm's length price--Determination--Transactional net margin method--Selection of comparables--Exclusion of loss making and abnormally high profit making companies--Principles--Assessee not charging mark-up on application research services--Activity cannot be clubbed with other activities--Transfer pricing adjustment justified--More than one year's data not to be taken--Unless assessee specifically demonstrates data would influence comparison of transfer price--Comparison of enterprise level profits not proper--Actual margin of servicing segment to be taken--Assessing Officer granting working capital adjustment--No further adjustment necessary--Claim of risk adjustment not to be granted--Direction of Dispute Resolution Panel not to ignore actual mark-up earned by assessee while comparing average mean--Assessing Officer bound to follow-- Exxon Mobil Company India P. Ltd. v. Deputy CIT (Mumbai) . . . 353
S. 144C(11) --International transactions--Arm's length price--Determination--Transactional net margin method--Selection of comparables--Exclusion of loss making and abnormally high profit making companies--Principles--Assessee not charging mark-up on application research services--Activity cannot be clubbed with other activities--Transfer pricing adjustment justified--More than one year's data not to be taken--Unless assessee specifically demonstrates data would influence comparison of transfer price--Comparison of enterprise level profits not proper--Actual margin of servicing segment to be taken--Assessing Officer granting working capital adjustment--No further adjustment necessary--Claim of risk adjustment not to be granted--Direction of Dispute Resolution Panel not to ignore actual mark-up earned by assessee while comparing average mean--Assessing Officer bound to follow-- Exxon Mobil Company India P. Ltd. v. Deputy CIT (Mumbai) . . . 353
S. 144C(13) --International transactions--Arm's length price--Determination--Transactional net margin method--Selection of comparables--Exclusion of loss making and abnormally high profit making companies--Principles--Assessee not charging mark-up on application research services--Activity cannot be clubbed with other activities--Transfer pricing adjustment justified--More than one year's data not to be taken--Unless assessee specifically demonstrates data would influence comparison of transfer price--Comparison of enterprise level profits not proper--Actual margin of servicing segment to be taken--Assessing Officer granting working capital adjustment--No further adjustment necessary--Claim of risk adjustment not to be granted--Direction of Dispute Resolution Panel not to ignore actual mark-up earned by assessee while comparing average mean--Assessing Officer bound to follow-- Exxon Mobil Company India P. Ltd. v. Deputy CIT (Mumbai) . . . 353
R. 8D --Deduction--Expenditure for earning income not liable to tax--Period prior to introduction of rule for determining such expenditure--Disallowance on fair and reasonable basis to be made-- Visual Graphics Computing Services (India) P. Ltd. v. Asst. CIT (Chennai) . . . 393
R. 10B --International transactions--Arm's length price--Determination--Selection of comparables--Factors to be considered--Nature of assessee's profile to be first determined--Assessee treating itself as a low end service provider, but Transfer Pricing Officer finding it was high end service provider--Rejection of comparables selected by assessee and fresh selection of comparables--Proper--Filters applied for comparables--Proper--Benefit of five per cent. margin--Not a standard deduction-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
R. 10B(4) --International transactions--Arm's length price--Determination--Transactional net margin method--Selection of comparables--Exclusion of loss making and abnormally high profit making companies--Principles--Assessee not charging mark-up on application research services--Activity cannot be clubbed with other activities--Transfer pricing adjustment justified--More than one year's data not to be taken--Unless assessee specifically demonstrates data would influence comparison of transfer price--Comparison of enterprise level profits not proper--Actual margin of servicing segment to be taken--Assessing Officer granting working capital adjustment--No further adjustment necessary--Claim of risk adjustment not to be granted--Direction of Dispute Resolution Panel not to ignore actual mark-up earned by assessee while comparing average mean--Assessing Officer bound to follow-- Exxon Mobil Company India P. Ltd. v. Deputy CIT (Mumbai) . . . 353
R. 10D --International transactions--Arm's length price--Determination--Selection of comparables--Factors to be considered--Nature of assessee's profile to be first determined--Assessee treating itself as a low end service provider, but Transfer Pricing Officer finding it was high end service provider--Rejection of comparables selected by assessee and fresh selection of comparables--Proper--Filters applied for comparables--Proper--Benefit of five per cent. margin--Not a standard deduction-- ST Microelectronics P. Ltd. v. CIT (Appeals) (Delhi) . . . 410
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