TaxTMI 
TaxTMI 
2016 (2) TMI 668
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.... whether the provisions of section 40(a)(ia) of the Act could be invoked towards the payment of Rs. 72,89,71,972/- made on account of offshore supply of equipments. ITA No. 806/Kol/2011 for A.Y 2007-08 (by the assessee) 4. In this appeal, the assessee has raised the following ground:- "That on the facts & in the circumstances of the case, the CIT(Appeals) erred in not deciding the issue of applicability of TDS provisions on payment of Rs. 72,89,71,972/- being made on account of offshore supply of equipments." ITA No. 872/Kol/2011 for A.Y 2007-08 (by the revenue) 5. In this appeal, the revenue has raised the following ground:- "The ld. CIT(A) erred in deleting the disallowance of Rs. 72,89,71,972/- u/s. 40(a)(ia) without appreciating the facts and circumstances of the case. " 6. The brief facts of this issue are that the assessee is a company engaged, inter-alia, in the business of manufacture and sale of various industrial and mechanical gases (viz. oxygen, nitrogen, dissolved acetylene etc) cryogenic and non-cryogenic plants and vessels. The ld. AO observed that in respect of advances lying on 31-03-2007 in respect of import of capital goods the tax was not deducted at ....
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....ld. CIT(A), it was contended by the assessee that no tax was required to be deducted on this transaction, as equipments were purchased outside India and the payment was also made outside India. It was argued that such sum is not chargeable to tax in India and hence there is no requirement withholding the tax in terms of section 195 of the Act. It was explained before the ld.AO that such sum was not charged to the P & L account for the year under consideration. The assessee has also not claimed any depreciation in computing the taxable income for the year under appeal. Based on this submission, the ld.CIT(A) deleted the impugned addition/disallowance made u/s. 40(a)(ia) of the Act by the ld.AO. Aggrieved, the revenue is in appeal before us. The assessee is also in appeal before us on the non-applicability of TDS provisions for payments made on account of offshore supply of equipments. 8. We have heard the rival submissions and perused the material available on record. We find that the ld.AO was not justified in invoking the provisions of section 40(a)(ia) of the Act to make disallowance of Rs. 72,89,71,972/-, because it is not in dispute that the payment of the aforesaid amount has....
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.... includes capital advance of Rs. 84,40,14,000. We also find that the assessee during the course of assessment proceedings had filed complete party wise details of capital work-in- progress of Rs. 130,31,87,000/-. The payment of Rs. 84,40,14,000/-, which is the part of capital advance and appearing in the capital workin- progress includes a sum of Rs. 72,33,40,648/- made to M/s. Linde AG and besides there was payment of Rs. 56,31,324/- to the said German company, which was appearing under the head "loans & advances". Thus, we find that the total of aforesaid amounts come to Rs. 72,89,71,972/- i.e (Rs.72,33,40,648 + Rs. 56,31,324). These sums are part of capital work-in-progress and loans and advances and not charged to the Profit & Loss A/c and the assessee has not claimed the same as deduction while computing the income under the head "profits and gains of business or profession". Moreover, the subject mentioned payments are not chargeable to tax in India in terms of section 195 of the Act. Hence, no disallowance could be made u/s. 40(a)(i)/40(a)(ia) of the Act. Hence, this ground of assessee's appeal is allowed and that of the revenue's appeal is dismissed. 9. The second issue to....
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....basis of the value of the land as determined under the Tamil Nadu Stamp Duty Act for determining the capital gains is illegal, invalid and without any authority of law. 2( c) Without prejudice to ground no. 2( a) & 2(b) above, the CIT(Appeals) erred in not appreciating that provisions of section 50C is not applicable on sale of building, being depreciable assets. 11. We have heard the rival submissions and perused the material available on record including the detailed paper book of the assessee filed before us. The facts as stated hereinabove remain undisputed and hence are not reiterated herein for the sake of brevity. We find that the ld.DVO had also adopted stamp duty rate @ Rs. 861 per sq.ft in respect of subject mentioned property. We also find from the paper book that the assessee submitted the registered valuer's report, wherein the said valuer had adopted the rate @ Rs. 830/- per sq. ft for the valuation of land. In the said valuation report the rate per sq.ft prevailing in various streets are mentioned as below:- Vaidyanathan Street - Rs. 728/- per sq.ft Thiruvottriyur High Road (particular stretch) - Rs. 983/- per sq.ft Elaya Mudali Street - Rs. 537/- per sq.f....
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.... of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act. Explanation 1.-For the purposes of this section, "Valuation Officer" shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). Explanation 2.-For the purposes of this section, the expression "assessable" means the price which the stamp valuation authority would have, notwithstanding anything to the contrary contained in any other law for the time being in force, adopted or assessed, if it were referred to such authority for the purposes of the payment of stamp duty. (3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed or assessable by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed or assessable by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer. 11.1 From the above, it could be seen that ....