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2012 (5) TMI 685 - HC - Income TaxReopening of assessment - taxability of income - DTAA - Held that:- The question of taxability of the income and the rate of tax was specifically examined and gone into in the original assessment proceedings. The assessee may not have disclosed the said receipt in the original return but the receipt was disclosed in the revised return and the aspect/ question of taxability/ exemption specifically considered. During the course of the original reassessment proceedings the entire transaction itself and the consideration paid under the said transaction were examined in depth. In the assessment order dated 30.03.2006, it was held that the fee for licensing the software to the Indian customers was taxable as royalty/ fee for technical services under Article 13 of DTAA and Section 9(i)(vi) and (vii) of the Act. The income was subjected to tax @ 10%. Article 7 and Section 44D was not invoked. No new fact had come to the knowledge of the Assessing Officer after completion of the original reassessment proceedings. It is not shown or alleged that new facts which were concealed had come the notice of the Assessing Officer. The Assessing Officer, on reconsideration of the same material facts, has drawn a legal inference/ conclusion on the basis of his interpretation of the Act and DTAA. This cannot be a valid ground to initiate re- assessment proceedings. - Decided in favour of assessee.
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