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2021 (3) TMI 193 - HC - Income TaxReopening of assessment u/s 147 - TDS u/s 195 - payments made to non-residents under the voyage agreements - Non deduction of TDS - reopening after four years - Addition u/s 40(a)(i) - petitioner had made payments to the owners of the ship/liners under the Bare Boat Charter Cum Demise (BBCD), Voyage Charter and Time Charter to M/s.Dolphin Maritime Inc., Cyprus and to few others under Voyage Charter - HELD THAT:- In this case, at the time of assessment, for the Assessment Year 2004-05 the details were called for from the petitioner vide notice dated 17.8.2006 issued u/s 143 (2)/142 (1) of the Income Tax Act, 1961. In its reply dated 30.8.2006, the petitioner declared that it had paid a total sum as freight. During assessment, only a sum of ₹ 6,08,98,646/-from the aforesaid amount was disallowed under Section 40(a)(1) of the Income Tax Act, 1961. Thus, there is no case made out for suppression of facts or failure to truly and fully disclose information by the petitioner. Therefore, invocation of the machinery prescribed under the Act for reopening the assessment beyond the normal period of limitation was not available to the respondent. Though, the petitioner has an alternate remedy before the Commissioner of Income Tax (Appeals), this court is inclined to interfere by quashing the impugned order dated 28.12.2011 for the Assessment Year 2004-05, as there was no failure on the part of the petitioner to truly and fully disclose all materials that are required for assessment by the assessment officer. Coming to the Assessment Year 2005-06 only reason given for re-opening of the assessment is on account of the failure on the part of the petitioner to pay tax on the freight under voyage charter. In the notice issued under section 143 (2) of the Income Tax Act, 1961 and the consequent communication dated 15.11.2007 of the Assistant Commissioner of Income Tax the petitioner was called upon to furnish the details in writing to the questionnaire attached to the said notice. The questionnaire specifically called upon the petitioner only to furnish details of BBCD hire charges paid to M/s.Dolphin Maritime Inc.Cyprus, with the details of tax deducted at source. The petitioner not only produced the details but also furnished the details of the payment made towards charter hire for a sum of ₹ 2,12,28,88,338/-. By another communication dated 3.12.2007 also these details were furnished again by the petitioner. The Asst Commissioner of Income Tax in the assessment order dated 31.12.2008 merely disallowed the BBCD hire charges for a sum of ₹ 4,35,64,010/-. This was perhaps on account of the order dated 27.4.2005 passed by the Income Tax Officer (International Taxation) Division. Thus, there was no failure to truly and fully disclose all information required for assessment.
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