TMI Blog2016 (2) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering all the facts cumulatively, we are of the opinion, that the order passed by the AO for both the AY. s were invalid. C. O. s filed by the assessee are decided in its favour. - ITA No. 3688/Mum/09, ITA No. 3689/Mum/09, ITA No. 2358/Mum/14, C. O. No. 244/Mum/2009 , C. O. No. 245/Mum/2009 , C. O. No. 129/Mum/2015 - - - Dated:- 12-2-2016 - Sh. Rajendra, Accountant Member And Ram Lal Negi, Judicial Member For the Petitioner : Shri Arvind Sonde For the Respondent : Shri Jasbir Chauhan ORDER Per Bench Challenging the orders dated 26. 3. 2009, 31. 3. 2009 and 22. 10. 2013for the assessment years 2000-01, 2001-02 and 2003-04 respectively of the CIT(A), the Assessing Officers(AO. s) have filed the present appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India as per the provisions of the Act, that there was no tax treaty with Hongkong, that provisions of section 5 and 9 of the Act were applicable, that the assessee had not provided the details of interchange received by it. The AO estimated the total inter change fees received by the non India branches/HO of the assessee on account of use of cards in India @1% of the interchange received. The AO made an addition of ₹ 50, 75, 990/- to the total income of the assessee. 3. Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority (FAA). Before him it was argued that re-opening of the assessment was bad in law, that there was no failure on part of the assessee to disclose material facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. (320ITR561), Govind Chaudhary Sons (109 ITR370). 5. We have heard the rival submissions and perused the material before us. We find that in the matter of Standard Chartered Grindlays Bank Ltd. (supra), the issue of taxability of commission with regard to Credit Cards was deliberated upon and decided by the Tribunal. We would like to re-produce the relevant portion of the order that deals with the facts as well as the reasoning, given by the FAA and the Tribunal, for deciding the issue against the AO. It reads as under: 43. Next ground of appeal is against deletion of addition of ₹ 10 crores being made on alleged commission earned by foreign branches of ANZ Grindlays Bank on their credit card business overseas where trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurred in India by a non-resident which will not be the case here since the issuing bank which provides debt is outside India being a foreign branch. As per art. 7 of Indo-UK DTAA, income that can be brought to tax in India must be directly or indirectly attributable to the PE in India. Since the transactions were with appellant's foreign branches where the issuing bank and the acquiring bank in India was some bank other than the Indian branch of the assessee, it cannot be said that Indian branch was in any way connected with the transaction or that income earned could in any way be said to have been directly or indirectly through PE in India. He accordingly held that the income arising in India from transaction in India by using credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely covered by the decision of the above referred order of the Tribunal, so, we hold that the order of the FAA does not suffer from any legal or factual infirmity as far as issue of taxability of ICMED is considered. Confirming his order, we decide the effective ground of appeal against the AO. 6. Though, we have dismissed the appeal filed by the AO, yet, we would like to decide the jurisdictional issue, raised by the assessee in its CO. i. e. re-opening of the assessment u/s. 147 of the Act. We find that in the case under consideration the notice for re-opening was issued without the approval of the competent Authority. Therefore, we hold that the assessment order passed by the AO was invalid. CO. filed by the assessee is allowed. IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he was satisfied. The reasons for his satisfaction are not available on record. In our opinion, mere mentioning that sanctioning authority was satisfied is not sufficient to initiate re-assessment proceedings, where during the original assessment proceedings AO takes a particular view after considering the submission of the assessee. It is not the case where assessee had not filed details required by the AO. If the AO decided not to call for particular information the assessee cannot he held responsible for that omission/ commission. Therefore, we hold that there was no failure on part of the assessee to disclose material facts truly and fully. Considering all the facts cumulatively, we are of the opinion, that the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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