TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 368
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....e laws in support of that, so the order passed by Assessing officer and CIT (A) should be quashed and 100 % of the Royalty Expenses may be allowed as Revenue expenses as claimed by the assessee. 3. That the Reassessment made by the Assessing officer U/s 143 (3) read with section 263 of Income Tax Act and confirmed by CIT (A) is bad in law, especially when there is no new material available with the Assessing officer and all the facts were duly verified by the Assessing officer while framing the assessment and same was brought to the knowledge of CIT(A), so the order passed by A.O and Confirmed by CIT(A) is against the provisions of law and should be quashed. 4. That the Disallowance made by the Assessing officer to the tune of Rs 67,60,50/- is against the provisions of law, so the order passed by the Assessing officer and Confirmed by the CIT(A) is against the provisions of law and should be quashed. 5. That the assessee seeks the permission to alter, add or amend any of the grounds of appeal." 3. An adjournment application filed by the appellant on the same date, i.e. 09.05.2023, at the time of hearing is rejected for insufficient reasons and the ld. counsel Mr. P. N. Arora....
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....ediate previous calendar month. 3) The above said royalty as mentioned in clause 2 of this Annexure shall be subject to minimum royalty of Rs 2, 00,000/- (Rupees two lacs only) per month plus Service Tax and/or any other tax which may applicable towards use of KAMDHENU Trade Mark as royalty to the First Pady regularly by 5th day of ever)' English calendar month in respect of sales made during the immediate previous calendar month. The said minimum royalty shall be applicable from 01/12/2012. It is clear from the extract of the agreement that we are paying the Royalty for the use of trade mark on the sales of product @ 1% on the total sales made during the month or minimum of Rs. 200000/- per month. That we are not paying any lumpsum amount as Royalty for the buying of any technology or for the technical knowhow, we just pay the Royalty for use of trade mark on the product we manufacture and for that we are paying the royalty, based upon the sales made by us during the year. The day agreement is finished among us we cannot use the trade mark and this has nothing to do with the technical know-how, so the version of the Pr. Commissioner and Assessing officer based upon the....
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.... a lumpsum considering of 20000 ponds and it has nothing to do with the sales of the company. The facts of our case are entirely different in our case we have to give 1% of sales to M/s Kamdhenu Ispat Limited for the use of trade mark of the company or Rs 200000/- per month for use of Trade Mark (Logo), the day agreement is not renewed between us we cannot use their trade mark. In our case as we are not getting any technical knowhow, nor we are getting any services like training of our employees, we just have to give the Royalty for use of trade mark and royalty @ 1°C of the sales made during the month or Rs 200000/- per month, so the facts of our case are not at all related to the facts of M/s Southeren Switch Gear. As the facts of the case law followed by A.O are totally different from the facts of our case so the addition made by Assessing officer based upon the case law are totally against the provisions of the law and should be deleted. More over the legal position has been clarified by the various courts in this regard:- a) Commissioner Of Income Tax, Noida, Gautam Budh Nagar V/s H-One India Pvt. Ltd.(Allahabad High Court) In this case it has been held by the Ho....
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...., even he has asked for the TDS deposited receipts as per questioner dated nil whose reply was filed on 30/08/2016 so we cannot say that order is errors so Invoking the provisions of Sec 263 and making a fresh assessment is bad in law and should be quashed. In has been held by many courts that if two views are possible- Revision is not valid When the Assessing Officer takes one of the two views permissible in law and which the Commissioner does not agree with and which results in a loss of revenue, it cannot be treated as erroneous order prejudicial to the interest of revenue, unless the view taken by the Assessing Officer is completely unsustainable in law. CIT v. Max India Limited [2007] 295ITR 282 (SC) Malbar Industries Co Ltd v. CIT [2000] 243 ITR 83 (SC) In our case also there are two different views possible, first the Royalty of the Revenue expenses as accepted by A.O in his first assessment U/s 143(3) and other view which has been taken by the Pr CIT without appreciating the facts of the case is that 25 % of these expenses to be capitalized" so the assessment framed U/s 143(3)/263 of Income Tax are against the provisions of law, so the order passed by Assessing of....