The
following important
judgements are available for download
at
itatonline.org.
S.
44BB vs. 9(1)(vii)/44D: The "pith and substance" test has to be applied
to determine the dominant purpose of each agreement. If the dominant
purpose is mining, the income is assessable only u/s 44BB and not as
"fees for technical services" u/s 9(1)(vii) & 44D
The pith and substance of each of the
contracts/agreements is inextricably connected with prospecting,
extraction or production of mineral oil. The dominant purpose of each of
such agreement is for prospecting, extraction or production of mineral
oils though there may be certain ancillary
works contemplated
thereunder. If that be so, we will have no hesitation in holding that
the payments made by ONGC and received by the non-resident assessees or
foreign companies under the said contracts is more appropriately
assessable under the provisions of Section 44BB and not Section 44D of
the Act
S. 24-AA Surtax Act: Principles of interpretation of a law conferring an exemption or concession explained
The law is well settled that a person who claims
exemption or concession has to establish that he is entitled to that
exemption or concession. A provision providing for an exemption,
concession or exception, as the case may be, has to be construed
strictly with certain exceptions depending upon the settings on which
the provision has been placed in the statute and the object and purpose
to be achieved. If exemption is available on complying with certain
conditions, the conditions have to be complied with. The mandatory
requirements of those conditions must be obeyed or fulfilled exactly,
though at times, some latitude can be shown, if there is a failure to
comply with some requirements which are directory in nature, the
non-compliance of which would not affect the essence or substance of the
notification granting exemption