TMI Blog2015 (12) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... te order by considering the objection of the petitioner, the respondent has passed a composite and non- speaking order. Since it is a non-speaking and composite order, the same is liable to be set aside. In the instant case, this Court does not find any tangible material warranting the assessing officer to re-open the assessment. ection 147 of the Act is exercised beyond a period of four years, therefore, the same is hit by limitation. Viewed from any angle, the respondent has not made out any ground to reopen the assessment order and the orders impugned in these Writ Petitions are liable to be set aside - Decided in favour of assessee - W. P. (MD)No. 7825 of 2015, W. P. (MD)No. 7828 of 2015, M. P. (MD). Nos. 1 of 2015 - - - Dated:- 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner filed its return of income for the assessment year 2009-2010, admitting a total income of ₹ 2,74,80,260/-. So also, in the case of W.P.(MD).No.7828 of 2015, the petitioner filed its return of income for the assessment year 2010-2011, admitting a total income of ₹ 4,82,02,050/-. 3.1. It is further averred in the affidavit that all the returns were processed under Section 143(1) of the Income-Tax Act, 1961 for the respective assessment years. All the cases were selected for detailed scrutiny and an assessment was made under Section 143(3) of the Act, on different occasions, determining the total income for the respective years. The petitioner firm has clearly disclosed separately the fact of payment of commission to For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 05.03.2015 rejecting the objections and also passed the re- assessment order resulted in filing the Writ Petition in W.P.(MD).No.7825 of 2015. In the similar set of facts, the other three Writ Petitions have been also been preferred, of course, for different assessment years. 4. To back his averment, the learned counsel for the petitioner has made the following submissions:- (i) If no operation of business is carried out in the taxable territories, then it can not be deemed to be an income which have either accrued or arisen in India. Therefore, the question of deducting TDS does not arise. (ii) When notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file a return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the commission amount was paid to the agent who is a non-resident for the service rendered outside India, Section 195 cannot be invoked. Since the Commission amount was paid to non-resident, it cannot be deemed to be an income. In this regard, the learned counsel for the petitioner relied upon a Division Bench of this Court in T.C.(a).No.789 of 2013 dated 22.07.2014, wherein, it has been held as follows:- 9. In the instant case, the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, referred supra, relied upon by the learned Standing Counsel for the Revenue is not applicable to the facts of the present case. We find no infirmity in the order of the Tribunal in confirming the order of the Commissioner of Income Tax(Appeals). 13. For the foregoing reasons, the substantial questions of law raised for our consideration are answered against the Revenue and we find no reason to differ with the concurrent findings rendered by the Commissioner of Income Tax (Appeals) and the Tribunal 8. From the dictum laid down in the above judgment, it could be seen that the commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be treated as an income whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the notice issued by the assessing officer, he is bound to consider the objections of the parties and pass a speaking order. But, in the instant case, without passing a separate order by considering the objection of the petitioner, the respondent has passed a composite and non- speaking order. Since it is a non-speaking and composite order, the same is liable to be set aside. 11. As regards to the third ground that the respondent has no power to reopen the assessment order without any tangible material, the learned counsel for the petitioner submitted that in the case of Commissioner of Income Tax Vs. Schwing Stetter India P. Ltd, reported (2015) 93 CCH 112 ChenHC, it could be seen that unless there is any tangible material to com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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