TMI Blog2016 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... reign agents had any establishment in India or in any manner the income accrued or arose in India. Even when the petitioner raised such an objection before the Assessing Officer, he rejected the objection without dealing with the specific contention. Be that as it may, on the question of change of opinion, we are convinced that impugned notice cannot survive. The same is, therefore, set aside. Petition is allowed and disposed of. - SPECIAL CIVIL APPLICATION NO. 9250 of 2010 - - - Dated:- 27-9-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MRS SWATI SOPARKAR, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Audit Report for the year also does not furnish any details regarding the amount of TDS, if any, made by the assessee on the payments of commission in view of the provisions of Section 195/194H of the I.T. Act. Therefore, the amount of ₹ 6,10,000/- is disallowable in view of the provisions of section 40(a)(i) of the I.T. Act. This resulted in to under assessment of income of ₹ 6,10,000 for A.Y. 2005-06. Therefore, I have reasons to believe that income of assessee company to the above extent of ₹ 6,10,000 for A.Y. 2005-06 has escaped assessment. The case is reopened u/s.147 of the I.T. Act . 2.3 Upon being supplied with such reasons, the petitioner raised objections to the notice of reopening under letter dated 3.2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, learned counsel for the revenue submitted that the notice for reopening has been issued within a period of 4 years from end of relevant assessment year. The question of deducting tax at source on foreign commission was not examined by the Assessing Officer in the original assessment. The question whether the income accrued or arose in India cannot be examined at this stage. 5. Having heard learned counsel for the parties, we may recall the Assessing Officer had cited only one reason for issuing notice for reopening of the assessment. Normally, the assessee had paid commission of ₹ 6.10 lacs to foreign agents. No TDS was deducted while making such payments. According to Assessing Officer, therefore, expenditure had to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate target unit and would receive quota from the assessee on the basis of which would receive agent's commission. It can thus be seen that during the original assessment proceedings, the question of deducting tax at source whenever required and whether such deduction was made or not was examined by the Assessing Officer. He asked the assessee to supply necessary details. The details supplied by the assessee included full working out of the foreign agent commission of ₹ 6.10 lacs. The documents also included the agency agreement between the petitioner and its foreign agents. Two things were, therefore, clear from the record (one) that the assessee had paid the foreign agent commission of ₹ 6.10 lacs and (two) that no tax was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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