9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (5) TMI 829 - HC - Income TaxReopening of assessment - CIT (Appeals) did not offer any opportunity to the assessee to make submissions with respect to the materials obtained from the survey and unilaterally rendered findings - Held that - Having primarily recorded that the CIT (Appeals) s order was bad for the reason that he did not follow the procedure prescribed by the law to the condition that reasonable opportunity is to be afforded to the assessee the ITAT ought not to have followed in the same manner in appreciating the facts in the first instance as it did. We are conscious that this Court in its ruling in Ericsson (2011 (12) TMI 91 - Delhi High Court) had rendered findings on the question of taxability of the transaction of supply and concluded that the supply contracts did not lead to any inferences that income had arisen or accrued in India. The facts found by this Court also pointed that there was PE. However that decision has to be seen in the light of the facts available to Court at that time. The question as to what was the material collected during the survey and what are the inferences drawn and whether the question of PE or any other issue would arise is something this Court ought not to surmise. Thus remit the matter to the CIT (Appeals) who shall give reasonable opportunity to the assessee in the light of the materials collected during the survey conducted on 22.11.2007 for the assessment years in question i.e. 1999-2000 to 2004-05 - Decided in favour of assesse by way of remand.
Issues:
1. Appeal against the order of the Income Tax Appellate Tribunal (ITAT) for Assessment Years (AYs) 1999-2000 to 2004-05. 2. Interpretation of tax liability under the Income Tax Act, 1961 and the Double Taxation Avoidance Agreement (DTAA) between India and Sweden. 3. Validity of the assessment based on materials collected during a survey conducted on 22.11.2007. 4. Adjudication of the powers of the CIT (Appeals) and the ITAT in rendering findings and appreciating facts. Issue 1: Appeal against ITAT's Order The Revenue appealed against the ITAT's order for AYs 1999-2000 to 2004-05, claiming that the ITAT erred in examining the merits of the contentions and drawing unwarranted inferences in favor of the assessee. The Court refrained from discussing the facts in detail due to the final order made. Issue 2: Tax Liability Interpretation The Swedish company, a subsidiary of LME, entered into contracts with Indian telecom service providers for the supply of telecommunication equipment during 1995-97. The company claimed exemption from tax under the Income Tax Act, 1961, and relied on the DTAA between India and Sweden. The Revenue unsuccessfully attempted to tax the consideration received by the company for the supply of equipment in the previous year. The matter culminated in a reported decision of the Court in a related case. Issue 3: Validity of Assessment Assessments for the years 1999-2000 to 2004-05 were pending, with reassessment notices issued for some years. A survey conducted on 22.11.2007 at the premises of a subsidiary of LME led to the completion of assessments. The CIT (Appeals) considered materials collected during the survey and sought to use them in pending appeals. The ITAT, in its order, criticized the CIT (Appeals) for not providing an opportunity to the assessee to respond to the new evidence. Issue 4: Powers of CIT (Appeals) and ITAT The ITAT found fault with the CIT (Appeals) for not following the prescribed procedure and rendering findings to the detriment of the assessee without affording a reasonable opportunity. The Court held that the ITAT should not have proceeded with the first instance appreciation of the material and should have remitted the matter to the CIT (Appeals) for a fresh determination. The Court set aside the orders of the ITAT and CIT (Appeals) and remitted the matter to the CIT (Appeals) for further proceedings, emphasizing the need for a reasonable opportunity for the assessee. The Court's judgment focused on the procedural irregularities in the assessment process, emphasizing the importance of providing a fair opportunity to the assessee to respond to new evidence. The decision highlighted the need for a fresh determination by the CIT (Appeals) based on the materials collected during the survey. The Court set aside the previous orders and allowed the appeals, preserving the rights and contentions of the parties for further proceedings.
|
