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TMI Blog2021 (12) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... hich ought to have been charged to tax. The AO notified the draft assessment order u/s. 143(3) r.w.s. 147 and section 144C(1) of the Act on 27-12-2019 computing total income at Rs. 9,46,20,724/-. The assessee remained unsuccessful before the Dispute Resolution Panel (DRP) on its contention that the initiation of re-assessment proceedings after four years from the end of the assessment year was not valid. That is how, the final assessment order was passed u/s. 143(3) r.w.s. 147 and 144C(13) of the Act on 16-04-2021 computing total income at Rs. 11,16,96,461-. The assessee has come up in appeal before the Tribunal. 4. We have heard the rival submissions and gone through the relevant material on record. The reasons recorded by the AO before initiating reassessment proceedings, have been reproduced on pages 3 to 6 of the draft assessment order, which read as under: "Reasons for reopening of the assessment in the case of For A.Y. 2012-13 u/s. 147 of the I.T. Act, 1961 The return of income for the assessment year 2012-13 was filed by the assessee M/s. Aktiebolaget Tetra Pak on 12.03.2014 offering receipts of Rs. 1,89,73,041/- as tabulated below for taxation as fees for technical ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perience or skill. Further an amount of Rs. 5,26,092/- received on account of training expenses has been offered for taxation. However training expenses of Rs. 40,19,007/- has not been offered for taxation with no supporting documents to establish how the two receipts were different and considered for taxation independently and differently. It has been held in a plethora of cases (ITO v Veeda Clinical Research Pvt. Ltd. 2013-TII-122-ITAT-AHM-INTL., MOU to the India-USA Tax Treaty (Example 6), Sahara Airlines Ltd. V DCIT (2003) 79 TTJ 268 (Del.), Hindalco Industries Ltd. V. ACIT (2005) 94 TTJ 944 (Mum), JCIT v. Kaiser Aluminium Technical Services Inc. ITA No. 826/Mum/99, International Tire Engineering Resources LLC In re (2009) 319 ITR 228 (AAR)) that the receipts from the area of technical training are taxable as 'fees for technical services' as the said services could not make technology available to the recipient. Further it has been held by the Hon'ble Mumbai Bench of the ITAT in the case of WNS North America Inc v. ADIT (International Taxation)-2(2), Mumbai (2013) 141 ITD 117 (Mumbai - Trib.) that the onus is on the taxpayer to produce adequate documentation before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said assessment year." 5. A bare perusal of the above reasons deciphers that the AO wanted to bring the sum of Rs. 7,81,23,918/- within the ambit of chargeability, which was considered by the assessee as not taxable in India and got accepted by the AO during the original assessment. At this stage, it is relevant to note the mandate of first proviso to section 147 of the Act which provides that where an assessment has been completed u/s. 143(3), no action shall be taken under this section after expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. The assessment year under consideration is 2012-13. Original assessment u/s. 143(3) of the Act was completed on 28-03-2016. A copy of the assessment order has been placed at pages 2 onwards of the paper book. The period of four years from the end of the relevant assessment year draws to close on 31-03-2017. Notice u/s. 148, a copy placed at page 10 of the paper book, was issued on 29-03-2019, which is obviously beyond a period of four years fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceedings by observing in the reasons that "No supporting documents have been furnished by the assessee in the course of assessment proceedings to establish that the services rendered by the assessee to Tetra Pak India, i.e. IT Support and Maintenance did not make available any Technical Knowledge, Experience or Skill." On going through the relevant material on record, it becomes emphatically clear that the assessee disclosed fully and truly all material facts necessary for the assessment during the course of original proceedings completed u/s. 143(3) and there was nothing which was withheld by it. What inference the AO draws from the material placed before him is a secondary question and matter of concern for the Department only. Insofar as the proviso to section 147 is concerned, the same gets immediately magnetized when it is proved that the original assessment was completed u/s. 143(3) and a period of four years has elapsed form the end of the relevant assessment year and further there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. 6. Adverting to the facts of the instant case, we find that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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