TMI Blog2011 (9) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... then completed the assessment under section 143(3) of the Act accepting the returned income as per the return of income vide his order dated December 28, 2007. Thereafter, a proposal under section 263 of the Act was received by the learned Director of Income-tax from the Assessing Officer vide letter dated March 26, 2009 along with assessment records recommending invoking the provisions of section 263 of the Act for the reason that the sum of Rs. 5,60,01,600 received by the assessee for providing designs and engineerings drawing in connection with the Second Vivekanand Bridge Tollway project (SVBT project) was not offered for taxation though it should have been taxed at 20 per cent. in the light of the fact that the assessee received consideration for providing designs and engineerings drawing from a dependent permanent establishment and supervisory permanent establishment based on an agreement dated May 10, 2007. The relevant assessment records were then examined by the learned Director of Income-tax and thereafter, notice under section 263(1) of the Act was issued to the assessee on April 8, 2009. In response to the show-cause notice so issued by the learned Director of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not accepted the order of the Tribunal holding that outright sale of drawings and designs are not covered under section 9(1)(vi) of the Act, and the Department has filed appeal before the High Court, which was pending. Being aggrieved, the assessee is in appeal before the Tribunal. Learned counsel for the assessee Shri T. N. Chopra, advocate, has submitted that the grounds or reasons adopted by the learned Director of Income-tax for cancellation of the impugned assessment of the Assessing Officer are factually and legally erroneous and the impugned order under section 263 has been passed without valid jurisdiction. He further submitted that the requisite conditions for assumption of jurisdiction are not fulfilled in the instant case. He further submitted that the Assessing Officer has made the impugned assessment under section 143(3) after calling for the requisite information and details and scrutinising the same. During the course of assessment proceedings, the Assessing Officer specifically called upon the assessee to file a copy of the agreement dated May 12, 2004 entered into between the assessee and Parsons Brinckerhoff India P. Ltd. (hereinafter called as "PBIPL") for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CIT v. Sunbeam Auto Ltd. [2011] 332 ITR 167 (Delhi). Learned counsel for the assessee then submitted that the power of suo motu revision under section 263 is in the nature of supervisory jurisdiction and the same can be exercised only if the two circumstances, i.e., (i) the order is erroneous, and (ii) by virtue of the order being erroneous, a prejudice has been caused to the interests of the Revenue, must exist in a given case. In this respect, he placed reliance upon the decision of the hon'ble Bombay High Court in the case of CIT v. Gabriel India Ltd. [1993] 203 ITR 108 (Bom). Learned counsel for the assessee further contended that the Income-tax Appellate Tribunal vide order dated July 4, 2008 in an appeal arising from the order passed under section 195(2) of the Act in the case of Parsons Brinckerhoff India P. Ltd. (PBIPL) has held that payment made by PBIPL to the assessee was not in the nature of royalty and therefore, the view taken by the Assessing Officer accepting the assessee's return of income cannot said to be unsustainable or untenable in the eye of law. Learned counsel for the assessee further submitted that the learned Director of Income-tax was not just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. He further submitted that the Assessing Officer accepted the assessee's return in total disregard to the view taken by the Department in the proceedings under section 195(2) of the Act where the Assessing Officer took the view that the receipts were in the nature of "royalty" within the meaning of article 12 of Indo-Thai treaty and directed the payer to deduct tax at source at 15 per cent. of the payment. He, therefore, submitted that it is the case where no enquiry whatsoever was made by the Assessing Officer, and also it is the case where the Assessing Officer passed the assessment order without application of his mind and therefore, the order passed by the Assessing Officer is certainly erroneous as well as prejudicial to the interests of the Revenue within the meaning of section 263 of the Act. We have heard both parties and have carefully perused the material on record. We have also deliberated upon the position of law and decided cases cited by both parties. At this juncture, we find it proper to take note of the principles laid down by the various courts with regard to the scope and interpretation of the provisions contained in section 263 of the Act. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. In the said case, the assessee's claim that the amount was received as compensation and damages for loss of agricultural income was accepted by the Assessing Officer. The learned Commissioner of Income-tax having examined the records of the assessment found that the nil assessment order passed by the Assessing Officer was erroneous and it was prejudicial to the interests of the Revenue. He, therefore, issued a notice under section 263 of the Act to show cause why the order of assessment should not be set aside and the amount in question should not be assessed under the head "Income from other sources". After considering the assessee's reply, the learned Commissioner of Income-tax concluded that the said amount was unconnected with any agricultural operation activity and was liable to be taxed under the head "Income from other sources". The Commissioner noted that the Income-tax Officer passed the order of nil assessment witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to law, upon mistaken view of law, or upon erroneous application of legal principles'. From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, apples his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income-tax Officer. That w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be indicative of the fact that the Assessing Officer had not applied his mind on the issue. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reason in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between 'lack of enquiry' and 'inadequate inquiry'. If there was any inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has different opinion in the matter." The aforesaid decision of the hon'ble Delhi High Court in the case of Sunbeam Auto Ltd. [2011] 332 ITR 167 (Delhi) has been relied upon by the same High Court in the case of CIT v. Anil Kumar Sharma [2011] 335 ITR 83 (Delhi) where the hon'ble High Court held that the Tribunal arrived at a conclusive finding that, though the assessment order does not patently indicate that the issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to examine the same in the light of the statement recorded at the time of search and surrounding circumstances. Likewise, he also found that in the assessment year 2004-05, the assessee had offered a sum of Rs. 21 lakhs only against the surrendered amount of Rs. 61.30 lakhs at the time of search. The assessee then filed appeal before the Tribunal challenging the order passed under section 263 in respect of these two assessment years. The Tribunal set aside the aforesaid order of the Commissioner of Income-tax. According to the Tribunal, the Assessing Officer had examined the issue and had even considered the statement of the assessee recorded on May 27, 2005. The assessee had furnished the cash book of both of his concerns and had explained the cash found at the time of search and the survey except a sum of Rs. 21 lakhs. The cash at hand which was available as per books of account in the two concerns of the assessee was Rs. 36,95,720 and after excluding this cash, remaining was only Rs. 25,34,580. The assessee had offered Rs. 21 lakhs for taxation in the year 2004-05 and thus, only a sum of Rs. 4,34,580 remained to be explained. It was explained by the assessee as cash as per his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been at least a brief discussion recording a satisfaction on the explanation offered by the assessee. In the light of the fact of keeping cash of Rs. 62.30 lakhs, part of which belongs to the assessee's sole proprietorship firm but another part to a private limited company of which he is a director, at his residence, may raise certain doubts. It was further noted by the hon'ble High Court that though in the letter dated January 7, 2004, the assessee had stated that he had kept the cash at his residence in his safe custody, this aspect needed to be properly examined. The hon'ble High Court noted the discrepancy in the explanation given before the Tribunal and the explanation given in reply to the show-cause notice issued by the Commissioner of Income-tax with regard to the source of the seized amount. The conduct of the assessee gave an impression that it may be an afterthought on the part of the assessee to explain the cash. The hon'ble High Court, therefore, held that under these circumstances, the Assessing Officer was required to go into this issue in proper perspective and could not be perfunctory in his approach. The Assessing Officer in his assessment order did not discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his mind to the issue as to whether the dividend income could be given the character of business income for the purpose of set off. We have already taken note of the order of the Assessing Officer. He recorded that even a dividend income in question was shown as business income by the assessee. The Assessing Officer did not agree with the same, as in the previous years this income was shown as dividend income. After saying so, the Assessing Officer straightaway allowed the set off of this income against the carry forward losses. The assessment order is totally silent and there is no discussion as to how this dividend income was to be given the character of business income for the purpose of set off under section 72 of the Act. It was for this reason that the Commissioner of Income-tax held that the Assessing Officer had not conducted any inquiry. The Tribunal, instead of appreciating these facts, went into the merits of the issue which the Assessing Officer is supposed to deal with. It addressed the question as to whether dividend income could be given the character of business income and then observed that the view taken by the Assessing Officer was plausible without appreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. We, thus, answer the question formulated above, in favour of the Revenue and against the assessee, as a result, the impugned order passed by the Tribunal is set aside." In the case of CIT v. Hindustan Marketing and Advertising Co. Ltd. [2012] 341 ITR 180 (Delhi), the hon'ble Delhi High Court has relied upon its earlier decision in the case of CIT v. Sunbeam Auto Ltd. [2011] 332 ITR 167 (Delhi) and has upheld the order of the Tribunal cancelling the order of the Commissioner of Income-tax passed under section 263 of the Act by observing that the Tribunal has rightly held that the present case was not a case where the enquiries were not made by the Assessing Officer or the relevant material was not collected before framing the assessment orders. The observation of the Commissioner of Income-tax that the Assessing Officer did not make sufficient enquiries is totally subjective. It was not a case of lack of enquiry. The Commissioner of Income-tax judged the "sufficiency of enquiry" by subjective standards. It appears that according to the Commissioner of Income-tax, more enquiries should have been made. The observations of the Commissioner of Income-tax were general in nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calculations, drawings and records in accordance with Appendix-A of the detail design and construction supervision agreement between Larsen Toubro and CES-PBIPL Consortium. The construction stage support to clarify design, rectification to design errors, omissions, etc., is also included in the package. Part 2 of Annexure-1 provided for design review of pile foundation, pile-caps, columns and column-heads for the approach viaduct superstructure of SVBT project including Howrah and Kolkata main line and Ramp A, B, C and D. In addition to the above, it also provided for review of various elements (design by CES) such as embankments, highway alignments, land drainage, tollway booths and walkway tunnel, underpass bridges and tunnels, overpass bridges, retaining walls, electrical, bridge drainage, etc. Part 3 of Annexure-1 included the work of detail design and production of final design drawings for pier P1 and P10 of the main bridge (excluding foundation), and submission of milestone dates for good for construction (GFC) as committed by PBIPL to Larsen Toubro, i.e., general arrangement by dated August 20, 2004 and reinforcement by dated September 10, 2004. The package shall be sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the meaning of article 22 of the treaty. The Assessing Officer, after considering the application filed by PBIPL under section 195(2) of the Act, took a view vide his order dated January 7, 2005 that the amount represented royalty within the meaning of article 12 of the India Thailand Double Taxation Treaty and directed that tax be deducted at source at the rate of 15 per cent. of the remittance. The TDS amounting to Rs. 84,00,240 including surcharge and education cess was thus deducted and deposited in the government account on February 14, 2005 and August 26, 2005 as mentioned in the TDS certificate issued by PBIPL to the assessee-company. However, PBIPL filed an appeal before the learned Commissioner of Income-tax (Appeals) under section 248 of the Act against the order of the Assessing Officer passed under section 195(2) of the Act. The learned Commissioner of Income-tax (Appeals) vide his order dated May 8, 2006 confirmed the order of the Assessing Officer. PBIPL then preferred further appeal before the Tribunal against the order of the learned Commissioner of Income-tax (Appeals) dated May 8, 2006. After hearing both parties and considering the facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m S. R. Batliboi Co. appeared before the Assessing Officer and filed reply. Thereafter, the Assessing Officer completed the assessment under section 143(3) of the Act on December 28, 2007 by accepting income returned by the assessee. Thereafter, on examination of record and after hearing the assessee, the learned Commissioner of Income-tax invoked his jurisdiction under section 263 of the Act and passed the order under section 263 of the Act on March 26, 2010 whereby he cancelled the Assessing Officer's assessment order with a direction to the Assessing Officer to make a fresh assessment after conducting proper enquiries on the relevant issues and after giving the assessee adequate opportunity of being heard. The learned Commissioner of Income-tax found the Assessing Officer's order to be erroneous as well as prejudicial to the interests of the Revenue for the following reasons : (i) The assessment has been made by the Assessing Officer without application of mind to the facts and issues involved in the case. (ii) No enquiries whatsoever were made by the Assessing Officer on the issues which are subject matter of proceedings under section 263 of the Act. (iii) The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices under the India-Thailand Double Taxation Avoidance Agreement. Thus, the same is taxable as business income under article 7 of the India-Thailand Double Taxation Avoidance Agreement and such income is taxable only in Thailand unless the PBAT has a permanent establishment ('PE') in India. As PBAT does not have any permanent establishment in India under article 5, income earned by PBAT is not taxable in India. Accordingly, nil return of income is being filed." From this note, it is seen that the assessee is a company incorporated in Thailand and it has entered into contract with PBIPL for supply of designs and drawings in connection with the Second Vivekananda Bridge Tollway project, in respect of which the assessee received a sum of Rs. 5,60,01,600 as consideration for supply of designs and drawings during the relevant year. In the Note, the assessee claimed that the consideration so received by the assessee from PBIPL was not chargeable to tax by giving the reason that as per section 92 of the Act, the amount shall be taxed only with reference to the provisions of the India-Thailand Double Taxation Avoidance Agreement or as per local Income-tax Act, which is more benefic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the assessment order, the Assessing Officer has also not narrated the paragraph 2 of the note attached to the statement of income where assessee claimed that the consideration received by the assessee was not chargeable to tax inasmuch as it was not chargeable to tax as fees for technical services as there was no specific clause of taxation under fees for technical services under the India-Thailand Double Taxation Avoidance Agreement and it was not taxable as business income in India as assessee has no permanent establishment in India. It is also to be noted that in this note attached to the return of income, the assessee has failed to give any explanation or reason as to why the consideration received by the assessee in respect of the contract work entered into with PBIPL was in the nature of business income. The assessee has merely given a general statement that income arising in the hands of the assessee is taxable as business income under article 7 of the India Thailand Double Taxation Avoidance Agreement without giving the reason or explanation as to why it is taxable as business income. The assessee has also stated that it does not have any permanent establishment in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings, the Assessing Officer has also not raised any query regarding the question as to why the consideration received by the assessee should not be treated to be in the nature of royalty within the meaning of article 12 of the Double Taxation Avoidance Agreement between India and Thailand as was so held in the order passed by the Assessing Officer under section 195(2) of the Act. On December 11, 2007, when the assessee was asked by the Assessing Officer to file certain details, the order passed by the Assessing Officer under section 195(2) of the Act got confirmed by the Commissioner of Income-tax (Appeals) vide his order dated May 8, 2006, and it was thus incumbent on the part of the Assessing Officer to apply his mind to this aspect of the matter and to ask the assessee to show cause why the amount received by the assessee should not be qualified as in the nature of royalty as so held in the proceedings under section 195(2) of the Act. But the Assessing Officer has failed to make any such enquiry and look to the issue from this angle completely in disregard of the view taken in the proceedings under section 195(2) of the Act, but instead he accepted the assessee's retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inputs from PB India. Production of final design and drawings. The detailed scope of work is provided in Annexure 1 of the contract between the assessee and PB India, which has been submitted before your goodself in our submissions dated December 11, 2007. 2. Where the work of designing, etc., was done The scope of work, mentioned under the contract, was carried out by the assessee in its Thailand office. 3. Any portion of work sub-contracted. If yes, details thereof. How much percentage of work was done by regular employees of PB Asia. It is humbly submitted before your goodself that the assessee has not subcontracted any portion of the work under the contract. The entire work was executed by the employees of the assessee. Details of support from associated enterprises taken in actual work. It is pertinent to note that the assessee has not taken support/ assistance from its associated enterprises for executing the work done under the contract. Transfer pricing study report A copy of the transfer pricing study report of P. B. India for the subject year has been annexed as Annexure I. Trust you find the above in order. In case your goodself is not in agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng recorded by the Assessing Officer on December 19, 2007 which runs as "C. A. Namrata and C. A. Akhil Sambhar from S. R. B. Co. appear and file reply". On December 19, 2007, no evidence or records or documents were produced before the Assessing Officer in support of the submissions made in the assessee's reply. The Assessing Officer has simply accepted the reply without verifying and examining the same with reference to relevant details, documents, records and evidence. At this stage, it is pertinent to note that in the contract agreement, it has been specifically stated that to execute the scope of work, the assessee's personnel may require to make short visits to the site in India. Site visits as necessary to Kolkata and Delhi (CES office) were also included in the package. The scope of the work provided for preparation and submission of fully dimensioned general arrangement drawings, segment casting data, segment reinforcement drawings and also included detailed design calculations, drawings and reports in accordance with Appendix-A of the detail design and construction supervision agreement between L T and CES/ PBIPL Consortium and design review of pile foundation, pile-caps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted any enquiries to either determine the nature of the receipts or the existence of permanent establishment of the assessee in India. (iv) The Assessing Officer has conveniently ignored the order under section 195(2) dated January 7, 2005 wherein the same receipts were held to be in the nature of royalty income and payer was directed to deduct tax at source on it. (v) In view of the above, the Assessing Officer failed to conduct proper and requisite enquiries on the relevant issues before passing the assessment order and accepting the return filed by the assessee. (vi) Further, the Assessing Officer has passed assessment order in utter disregard to the stand taken by the Revenue in the proceedings under section 195(2) of the Act. Learned counsel for the assessee has strongly contended that necessary enquiries were made by the Assessing Officer regarding issues involved in the assessment as would be established from the fact that the Assessing Officer specifically called upon the assessee to file a copy of contract agreement, which was duly filed by the assessee, and asked the assessee to file certain information vide order sheet entry dated December 11, 2007. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, the Assessing Officer passed an order under section 195(2) of the Act by qualifying the consideration to be in the nature of "royalty" and directed the payer to deduct the tax at source. Accordingly, the due tax was deducted at source from the payment made to the present assessee, and the present assessee had furnished tax deduction certificate along with the return of income and claimed the amount to be refundable. The order of the Assessing Officer passed under section 195(2) was confirmed by the learned Commissioner of Income-tax (Appeals) vide his order dated May 8, 2006. The assessment order in the case of the present assessee was made on December 28, 2007 accepting the assessee's return. In the assessment order at paragraph 5, the Assessing Officer has mentioned about the hearing taken place on December 11, 2007 and December 19, 2007 by stating that "case was discussed and also submissions were filed by assessee on December 11, 2007, December 19, 2007". Thereafter, he accepted the return filed by the assessee with the mere observation that "with these remarks the income returned as per return is accepted". The nature of information asked for by the Assessing Officer v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), was proper on his part. Learned counsel for the assessee has further tried to demonstrate and establish that it was not a case where no enquiry at all was conducted by the Assessing Officer and the Assessing Officer had not applied his mind before accepting the return filed by the assessee. In this process, he drew a distinction between "lack of enquiry" and "lack of inadequate enquiry" and submitted that if there is an enquiry, even inadequate, that would not by itself give occasion to the Commissioner of Income-tax to pass an order under section 263 of the Act merely because he has a different opinion in the matter. In this respect, he strongly placed reliance upon the decision of the hon'ble High Court in the case of CIT v. Sunbeam Auto Ltd. [2011] 332 ITR 167 (Delhi). We have carefully gone through the said decision where it has been held that it is only in the case of "lack of enquiry" that a course of exercising revisionary jurisdiction under section 263 of the Act would be open and while holding so, their Lordships have considered the earlier decision of the hon'ble Delhi High Court in the case of Gee Vee Enterprises v. Addl. CIT [1975] 99 ITR 375 (Delhi), and if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepting the assessee's return particularly in the light of the fact that the nature of income was qualified to be in the nature of royalty in the proceedings under section 195(2) of the Act by the Department, which was upheld by the learned Commissioner of Income-tax (Appeals) by the time when the assessment was made. The Director of Income-tax has been able to make out that the present case is a case of lack of enquiry and non-application of mind by the Assessing Officer. Thus, on facts, this decision of the hon'ble Delhi High Court in the case of CIT v. Sunbeam Auto Ltd. [2011] 332 ITR 167 (Delhi) is of no assistance to the assessee's contention. A further reliance was placed by the assessee upon the decision of the hon'ble High Court of Delhi in the case of CIT v. Hindustan Marketing and Advertising Co. Ltd. [2012] 341 ITR 180 (Delhi), where the decision of same High Court in the case of CIT v. Sunbeam Auto Ltd. [2011] 332 ITR 167 (Delhi) has been referred to, in support of the contention that merely because the Commissioner of Income-tax expected that the Assessing Officer should have gone deeper into the matter, the exercise of jurisdiction under section 263 of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er taken by the Department in the proceedings under section 195(2) of the Act that the receipt was in the nature of royalty, and tax was required to be deducted at source. One more plea has been raised by learned counsel for the assessee that the order of the Assessing Officer accepting the assessee's return cannot be treated as erroneous order as well as prejudicial to the interests of the Revenue inasmuch as the Assessing Officer has taken one possible view, which is in conformity with the view of the Tribunal taken in an appeal arising from the order of the learned Commissioner of Income-tax (Appeals) passed in the matter of an order made by the Assessing Officer under section 195(2) of the Act. As already observed above, on an application made by the payer of the amount paid to the present assessee, the Assessing Officer took the view that the amount represented "royalty" within the meaning of article 12 of the Indo-Thailand treaty and directed that tax be deducted at source at 15 per cent. of the remittance vide order dated January 7, 2005. The payer PBIPL filed an appeal before the Commissioner of Income-tax (Appeals), who had taken the view that the amount constituted ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is placed upon the decision dated May 11, 2011 in the case of CIT v. Nalwa Investments Ltd. [2011] 338 ITR 552 (Delhi). Therefore, this argument of the assessee's counsel is of no avail on the facts of the present case, and is thus rejected. Learned counsel for the assessee has advanced one more contention that the learned Director of Income-tax was not justified in overlooking the order of the Tribunal dated July 4, 2008 passed in the proceedings under section 195(2) of the Act merely by making a casual observation that the Department is in appeal against the Tribunal's order before the hon'ble High Court. In this case, we are concerned with the issue as to whether the Assessing Officer has failed to make necessary enquiry before accepting the return of income filed by the assessee and whether the Assessing Officer has failed to apply his mind to the issues involved in the assessment, in accepting the assessee's return of income. We are not concerned about the final ascertainment of the issue as to whether the receipts received by the assessee were in the nature of royalty or business income or any other income or whether the assessee had a permanent establishment in India. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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