AANPN7438C – A.Y.

2015-16 - 148
Fact of the case:
Objection raised by the assessee that notice issued u/s. 148 of I.T. Act,
1961was not signed by the AO, not even digitally signed.
Technical advised sought for:
1. Technical suggestion sought for that notice u/s. 148 of the I.T.
Act, 1961 was digitally signed or not.
2. Technical suggestion /opinion regality of notice u/s. 148 of the
I.T. Act, 1961.
Comment of the TO of TU:
1. The TO of TU can’t access the notice u/s. 148. It is available in
system and the FAO can check the same form ITBA. Therefore, the TO
of TU can’t comment on this issue.
2. The question of validity of the notice u/s. 148 since the same is not
signed by the issuing authority, it is relevant to mentioned that the FAO
has not mentioned whether the notice is manual notice or generated
through system after obtaining approval from the appropriate authority
u/s. 151. Therefore, the TO of TU is unable to give suggestion / opinion
regarding legality of impugned notice u/s. 148 of the I.T.Act, 1961.
Without prejudice to the above, since the notice was issued
31.01.2021, therefore, the same has been generated through system
after obtaining online prior approval of appropriate authority u/s. 151 and
notice was duly served on assessee through e-mail of the assessee as
registered with the e-filing portal. Therefore, outright it can’t be said that
the notice is invalid on the basis of procedures followed before issuing of
the notice and service through electronic means.
In case the assessee has submitted the ITR in response to the
notice u/s. 148 then the provision of sec. 292BB comes into force to give
immunity even if not signed digitally.
The TO of TU also like to reproduce sec. 282A as under:
Authentication of notices and other documents.
282A. (1) Where this Act requires a notice or other document to
be issued by any income-tax authority, such notice or other
document shall be signed and issued in paper form or
 communicated in electronic form by that authority in accordance
with such procedure as may be prescribed16.
(2) Every notice or other document to be issued, served or given
for the purposes of this Act by any income-tax authority, shall be
deemed to be authenticated if the name and office of a designated
income-tax authority is printed, stamped or otherwise written
thereon.
(3) For the purposes of this section, a designated income-tax
authority shall mean any income-tax authority authorised by the
Board to issue, serve or give such notice or other document after
authentication in the manner as provided in sub-section (2).

The TO of TU further reproduced Rule 127A as under:

[Authentication of notices and other documents.
127A. (1) Every notice or other document communicated in
electronic form by an income-tax authority under the Act shall be
deemed to be authenticated,—

(a)in case of electronic mail or electronic mail message

(hereinafter referred to as the e-mail), if the name and office of
such income-tax authority-
(i) is printed on the e-mail body, if the notice or other
document is in the e-mail body itself; or
(ii) is printed on the attachment to the e-mail, if the notice or
other document is in the attachment,
and the e-mail is issued from the designated e-mail address of
such income-tax authority;
(b)in case of an electronic record, if the name and office of the
income-tax authority—
(i) is displayed as a part of the electronic record, if the notice
or other document is contained as text or remark in the
electronic record itself; or
(ii) is printed on the attachment in the electronic record, if the
notice or other document is in the attachment,
and such electronic record is displayed on the designated
website.
(2) The Principal Director General of Income-tax (Systems) or the
Director General of Income-tax (Systems) shall specify the
designated e-mail address of the income-tax authority, the
designated website and the procedure, formats and standards for
ensuring authenticity of the communication.
 Explanation.— For the purposes of this rule, the expressions—
(i) "electronic mail" and "electronic mail message" shall have
the same meanings respectively assigned to them
in Explanation to section 66A of the Information
Technology Act, 2000 (21 of 2000);
(ii) "electronic record" shall have the same meaning as
assigned to it in clause (t) of sub-section (1) of section 2 of
the Information Technology Act, 2000 (21 of 2000).]
Conclusion:

1. A manual paper notice needs proper stamp and signature of the

issuing authority.
2. Electronic notice generated from system needs to be signed
detailly.

PAN : AAIPT4842P – A.Y. 2013-14 – FMV:

Technical / legal advice sought for:

Provie the fair market value of the rent situated at B-508 Hill side Raheja
Vihar Chandivali Andheri Ease, Mumbai, Maharashtra – 400072.

Comment of TO of TU:
The TO of TU does not have mechanism to provide FMR (Fair market
rent) of a property situated at Mumbai sitting in another part of the
country.
The FAO is suggested to refer the case to DVU who is located nearby
location and may enlighten you in respect of rent of similar property in
nearby location. You are also requested to provide approximate covered
are to as to enable the DVU to provide possible FMR.
Further, the FAO may search website https://www.magicbricks.com,
https://www.99acres.com, https://housing.com etc. to get the probable
rent of similar property in that area.
PAN: AAACP9069R – A.Y. 2020-21 – 195

Legal advice/ opinion sought for: Whether TDS applicable on

payment made to Amazon Web Services u/s. 195?
1. Companies having a PE (permanent establishment) in India before
2010, then no tax would be applicable whatsoever. This was true
of AWS (Amazon Web Services) as well.
2. The Finance act in 2010 changed things a bit (and some of these
were retrospective amendments). It was announced that for
following three categories TDS is applicable, even without a PE :
– Income by way of Interest Payable
– Income by way of Royalty
– Income by way of Fees for Technical Services
3. The payment we make to AWS cannot be classified either as
Interest or as Royalty (as per the then definition of these
categories). The only other option is FTS – Fees for Technical
Services.
4. Time and again, the Income Tax Appellate Tribunal (ITAT) has
ruled that FTS is applicable only when the service is rendered by a
human – there should a person working for you at the other end
(think freelance programming, think consulting). Robots and
Machines do not fall under this definition – and AWS is a machine
rendered service. The Hon’ble ITAT "L" Bench, Mumbai ruling in
the case of Siemens Limited vs.  Commissioner of Income Tax
(Appeals) – 11 Mumbai made this amply clear.
5. Again, in the year 2012, the scope of the term Royalty was
significantly enhanced. This caused further debate and questions
arose if tax had to be withheld under the new definition of Royalty.
6. But the DTAA (of which AWS is a beneficiary) still retains the pre-
2012 definition of Royalty and this overrides any other definition
found elsewhere, particularly when dealing with companies
covered under the DTAA. So, AWS payments still remain out of
the Royalty net.
7. In summary, payments made to AWS cannot be classified as
Interest payments, FTS or Royalty. For withholding tax under any
other category other these, it is mandatory to have a PE in India.
As I have mentioned earlier, AWS has no PE in India. This implies
that we are not liable to withhold any taxes for payments made to
AWS.
In this regard the FAO may check decision of following judicial
authorities:
 1. The Hon’ble High Court of Madras in the case of Skycell
Communications Ltd. & Anr. Vs. DCIT
2. The Hon’ble ITAT PUNE BENCH “A”, PUNE in the case of
EPRSS Prepaid Recharge Services India P. Ltd vs. The
Income Tax Officer, Ward – 1(4), Pune

PAN: AAGCP6427P – A.Y. 2015-16 – GOODWILL:

Legal advise: Whether amendment in respect of exclusion of goodwill in
Explanation 3(b) of clause (ii) of sub-section (1) of sec. 32 is
retrospective of prospective?
Comment of the TO of TU:
The amendment brought into stature by the Act No. 13 of 2021, w.e.f. 1-
4-2021 to nullify the judgment of Hon’ble Apex Court in the case of CIT
vs. Smift Securities Ltd. [(2012) 348 ITR 302 (SC)].

Since nomenclature of the asset goodwill is being changed, therefore,

amendment also made in sec. (11) of section 2, sec. 50 & sec. 55 of the
Act by substituting clause (a) of subsection (2)
Further Rule 8AC is also Inserted by the Income tax Amendment
(Nineteenth Amendment), Rules, 2021, w.e.f. 7-7-2021 for Computation
of short-term capital gains and written down value under section 50
where depreciation on goodwill has been obtained which was not in the
Rule earlier.
Observing layers of amendment in respect of treatment of Goodwill in
I.T. Act & Rule, the TO of TU is of the view that the amendment is
prospective.