TMI Blog2015 (10) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... as referred to the same in the Assessment Year and taken note of the same. Thus on perusal of the reasons we find that no fresh information or material has been referred to in the reasons recorded for seeking to reopen the assessment. The material that is referred to is the very same material that was already before the Assessing Officer at the time of framing of the assessment under Section 143 (3) of the Act and even the reasons record that „from the perusal of the assessment record, it is observed that’. This clearly shows that the assessing officer has sought to re-appreciate the material that was already there at the time when the assessment was framed under Section 143 (3). Thus, as seen from above, it is clearly a case of change of opinion, which is clearly not permissible. AO has merely intended to revisit the concluded assessments - Decided in favour of assessee. - WP(C) No. 1874/2013, WP(C) No. 1984/2014 - - - Dated:- 8-10-2015 - Badar Durrez Ahmed And Sanjeev Sachdeva, JJ. For the Petitioner : Mr M.S. Syali, Sr Advocate with Mr Mayank Nagi, Ms Husnal Syali and Mr Harkunal Singh For the Respondent: Mr Rohit Madan, Mr Ruchir Bhatia, Mr Akash Vajpai and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Give the list of AE's in India, if any, and also give details of transactions entered with them. (ix) Copy of Tax Residency Certificate. (x) Copy of last Assessment Order. 5. On 5.10.2009, the petitioner filed a detailed reply to the questionnaire and reply given to the above referred queries was as under:- (i) In reply to query no. 1, it was submitted that Petitioner was company incorporated under the laws of state of Georgia. During the AY in question, the Petitioner derived the largest portion of its Indian income from the grant of exclusive rights to Turner International India Private Ltd. (`TIIPL') in India to sell advertising on the products and to distribute the products. (ii) In reply to query no 2, a print of Corporate Tax Return e-filed for AY 2007-08 was submitted. (iii) In reply to query no. 3, a copy of computation of income along with Notes to computation was filed. (iv) In reply to query no. 5, a copy of report in Form 3CEB was filed. (v) In reply to query no. 12, copy of Order under Section 195(2) of the Act, determining the withholding tax rate for making remittance to the Petitioner was filed. (vi) In reply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipts are taxable as royalty and also as per article 12(3) of the DTAA with USA, tax is deductible at 10%. As the MAP Resolution was only for A.Y. 2001-02 to 2004-05 and the revenue was accruing the assessee in A.Y. 2007-08 in pursuance of the agreement, which is effective from 01.04.2006, it should have been offered and taxed at 10% as per section 115A of the I. T. Act, 1961. Thus, the assessee has chargeable income, in excess of 1 lakh rupees, which has escaped assessment. In view of the above, I have reasons to believe that the income chargeable to tax the escaped assessment within the meaning of section 147/148. (Mazhar Akram) Deputy Director of Income Tax Cir-2(2) Intl. Taxation New Delhi 8. On 14.05.2012, the petitioner filed objections to the reasons. By order dated 22.02.2013, the objections have been disposed of. The petitioner has thus impugned the notice under Section 148 as well as the order disposing of the objections in this petition. WP(C) 1984/2014 (Assessment Year 2008-09) 9. On 05.03.2010, the petitioner filed its return of income declaring an income of ₹ 11,17,78,295/-. 10. On 25.08.2010, notice under Section 143 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertisement distribution revenue was taxed by taking only 10% of the revenue as the net profit chargeable to tax in India as per the MAP resolution for the assessment years 2001-02 and 2004-05. During the course of perusal of records, it is revealed that the MAP resolution was application only for assessment years 2001-02 2004-05, and the current revenue was accruing to the assessee in assessment year 2008-09 (FY 2007-08) in pursuance of the agreement, which is effective from 01.04.2006. Hence, it would have been taxed at the rate of 10% on gross basis as per the provisions of section 115A of the Income Tax Act, 1961, In view of the above, I have reason to believe that the income chargeable to tax has escaped has assessment within the meanings of section 147/148 of the Act, 1961. (Mazhar Akram) Deputy Director of Income Tax Circ 2(2) Intl. Taxation, New Delhi 15. On 30.1.2014, the petitioner filed its objections against the notice seeking to reopen the assessment. By the order dated 20.02.2014, the objections have been disposed of. The petitioner in the present petition has impugned the notice under Section 147/148 seeking to re-open the assessment an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h situations, it should be accepted that the issue was examined but the Assessing Officer did not find any ground or reason to make addition or reject the stand of the assessee. He forms an opinion. The reassessment will be invalid because the Assessing Officer, had formed an opinion in the original assessment, whether or not he had recorded his reasons in the assessment order. 19. In Jindal Photo Films Ltd. Versus Deputy Commissioner of Income-tax (1999) 234 ITR 170 (Del) a division bench of this court held as under: 14. Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191 (SC) is the leading authority which still holds the field. It is well-settled that while submitting to the jurisdiction of an Assessing Officer, it is the duty of the assessee to disclose all the primary facts (in contradistinction with inferential facts) which have a bearing on the liability of the income earned by the assessee being subjected to tax. It is for the Assessing Officer to draw inferences from the facts and apply the law determining the liability of the assessee. The law does not require the assessee to state the conclusions that can reasonably be drawn from the primary facts. Once that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yan Singh [1965] 56 ITR 234 , 239(SC). 17. In Phool Chand Bajrang Lal. v. ITO [1993] 203 ITR 456 (SC), their Lordships have held while interpreting section 147 as it stood in the assessment year 1963-64:- . . . An Income-tax Officer acquires jurisdiction to reopen an assessment under section 147(a) read with section 148 of the Income-tax Act, 1961, only if on the basis of specific, reliable and relevant information coming to his possession subsequently, he has reasons, which he must record, to believe that, by reason of omission or failure on the part of the assessee to make a true and full disclosure of all material facts necessary for his assessment during the concluded assessment proceedings, any part of his income, profits or gains chargeable to income-tax has escaped assessment. He may start reassessment proceedings either because some fresh facts had come to light which were not previously disclosed or some information with regard to the facts previously disclosed comes into his possession which tends to expose the untruthfulness of those facts. In such situations, it is not a case of mere change of opinion or the drawing of a different inference from the same fac ..... 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