TaxTMI 
TaxTMI 
2017 (9) TMI 1154
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....cy, to the expatriates working in India exclusively for the permanent establishment ('PE') of the Appellant in India, on which taxes have been duly deducted/deposited in India, and accordingly the order of the Hon'ble CIT(A) is erroneous in law as well as on facts on the following counts: a) That the Hon'ble CIT(A) has failed to appreciate that the salary has been paid to the expatriates who are stationed in India and are working exclusively for business operations of the Indian PE of the Appellant and is thus an allowable expenditure as per Article 7(3) of DTAA; b) That the Hon'ble CIT(A) has erred in observing that the nature of expense is covered under section 44C of the Act, even though, the said amount is incurred exclusively and for direct benefit of Indian operations of the Appellant. c) That the Hon'ble CIT(A) erred in not appreciating that the allowability of deduction is not dependent upon the entries in books of accounts of the Indian PE. 2 Non-applicability of the provisions of Sec 115JB of the Act relating to Minimum Alternate Tax ('MAT') That on the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding the contention of ....
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....he Hon'ble CIT(A) himself in the order passed for Assessment Year 2002-2003 by following the judgment of Hon'ble ITAT in Appellant's own case. 5 Applicable Rate of Tax That on the facts and circumstances of the case and in law, the Hon'ble CIT(A) has erred in not upholding the contention of the Appellant that under the provisions of Article 24 of the India-Japan DTAA, the applicable rate of tax on the income of the Appellant attributable to its PE in India cannot exceed the applicable rate of tax (as per the Finance Act for the subject assessment year) in the case of Domestic Companies and consequential directions may kindly be issued in this regard. 6 General a) Each of the above ground is independent and without prejudice to the other grounds of appeal preferred by the Appellant. b) The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing, of the appeal, so as to enable your Honour to decide this appeal according to law. I.T.A. No. 3755/DEL/2014 "1. On the facts and in the circumstances of the case and law, Ld. CIT(A) has erred in deleting the addition made by the AO on account....
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....1(1), International Taxation, New Delhi who continued the proceedings from the stage it was left by the erstwhile AO. While scrutiny proceedings on the basis of the original return were in progress a revised return of income u/s 139(5) was filed by the assessee on 30.03.2007 which was taken up for continuing scrutiny proceedings afresh on the basis of the revised return of income. The Assessing Officer conducting the scrutiny proceedings issued notices u/s 143(2) of the Act along with questionnaire requisitioning certain details from the assessee on 28.09.2007. The revised return was taken as the basis for scrutiny proceedings by the Assessing Officer. The assessment was completed on 31.12.2007 on the basis of the revised return of income and the Assessing Officer made certain additions/disallowances to the returned income computed under the normal provisions of the Act as well as u/s 115JB of the Act. The Assessing Officer held that the income of the assessee under the normal provisions of the Act was assessed at Rs. 68,23,72,860/- as against Rs. 45,00,99,039/- disclosed by the assessee. Tax @ 41.82% was levied resulting in demand of Rs. 29,07,13,730/-. Simultaneously the income o....
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.... AR submitted that Ground No. 1 relating to Disallowance of Salary paid to Expat employees amounting to Rs. 14,26,64,438/- made by the Assessing Officer is covered in favour of assessee by the Delhi High Court order dated 08.04.2016. As regards to Ground No. 2 relating to non applicability of provisions of MAT, the same is also covered in favour of assessee as per the Hon'ble Delhi High Court decision dated 08.04.2016. Ground No. 3 and 4 are not pressed as the CIT(A) in rectification order dated 26.10.2015 granted the issue in favour of the assessee. For Ground No. 5 relating to applicable rate of tax, the said issue is covered against the assessee by the ITAT, Delhi vide order dated 19.09.2014 for A.Y. 2007-08 & 2008-09 in assessee's own case. 7. In respect of Revenue's appeal, for Ground No. 1 relating to addition of provision for wealth tax while computing book profit under section 115JB of the Act therein, the Ld. AR submitted that the same is purely academic if the Ground No. 2 of the Assessee's appeal is allowed in favour of the assessee. The Ld. AR relied upon the decision in case of JCIT vs. Usha Martin Industries Ltd. (2007) 104 ITD 249 (Kol.) (SB) and CIT vs. Echjay Forg....
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.... 9.2 As relates to Ground No. 2 of the Assessee's appeal, the Hon'ble Delhi High Court in Assessee's own case (ITA No. 604/2015 order dated 08.04.2016 held that "Applicability of Section 115JB 20. The ITAT has after an elaborate discussion had come to the conclusion that the Assessee's claim for lower tax will have to be accepted because Section 115JB is subject to Section 90(2) of the Act and the taxable income of the Assessee would have to be computed in terms of Article 7(3) of the DTAA. What is significant is that the profit and loss account of the Assessee has not been prepared in terms of Part II of Schedule VI of the Companies Act, 1956 and in fact could not have been prepared in terms thereof. Consequently, the question of applicability of Section 115JB did not arise. As rightly pointed out till the insertion of Section 115JB, banking companies were required to prepare their accounts in terms of special acts that they were governed by, and therefore there were no computation provisions as regards such banking companies. The change brought out by Section 115JB was therefore not retrospective. 21. The reasoning and the conclusion of the ITAT on this issue appears to ....