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TMI Blog2022 (3) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. On the facts and circumstances of the case and in law, the impugned reassessment order passed under Section 148 read with Section 143(3) and Section 144C of the Income tax Act, 1961 ('the Act') is wrong, bad in law and void-ab-initio. 2. On the facts and circumstances of the case and in law, the Learned Deputy Commissioner of Income Tax, Circle-i(i) International Taxation, New Delhi ('Ld. AO') erred in initiating reassessment proceedings under Section 147/148 of the Act and the proceedings initiated are illegal, bad in law and void-ab-initio. 2.1 That in so initiating the proceedings under section 147/148 of the Act, the Ld. AO failed to appreciate that the reassessment proceedings were barred by limitation in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,145/- from GBN in AY 2007-08, the Ld. AO/Ld. DRP erred in not granting credit of taxes deducted at source on said royalty as per provisions of Section 199 of the Act in the AY 2007-08. 6. Without prejudice to grounds at 2 above, on the facts and circumstances of the case and in law, the Ld. AO erred in not allowing the complete credit of taxes deducted at source without assigning any reason. 7. Without prejudice to grounds at 2 above, on the facts and circumstances of the case and in law, the Ld. AO erred in levying interest under Section 234B of the Act. 8. Without prejudice to grounds at 2 above, on the facts and circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under Section 271(1)(c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adcasting System Asia Pacific for the assessment of Turner Broadcasting System Asia Pacific for the assessment year 2007-08 was completed after scrutiny in December 2009 determining income of Rs. 285.33 lakh. M/s. Global Broadcast New Pvt. Ltd. in its accounts for the AY 2007-08 debited an amount of Rs. 456.98 lakh on account of royalty paid to Turner Broadcasting System Asia Pacific. During the course of perusal of records, it is revealed that the assessee has credited an amount of Rs. 231.79 lakh on account of royalty received from M/s. Global Broadcast New Pvt. Ltd. Balance amount of Rs. 225.19 lakh should have been included in the total income. This has resulted in escapement of income, in excess of Rs. 1 lakhs. In view of the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has furnished detailed reply in respect of the agreement with GBN. This fact is also apparent from the body of the assessment order wherein, at Note 2, the AO has mentioned: "During F.Y. 2005-06, TBSAP entered into an agreement with Global Broadcast New Private Ltd. dated 26.10.2005. TBSAP's income under the terms of the agreement is in the nature of royalty and is offered to tax on gross basis at 10.455% including surcharge and cess u/s. 115A of the Act. During the F.Y. 2006-07, TBSAP's income under this agreement was Rs. 2,31,79,797/-. Out of this amount, tax amounting to Rs. 26,68,691/- has been withheld at source". 15. We further find that during the course of original assessment proceedings, the assessee has furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd reasons so recorded clearly show that it is re-application of mind on same set of facts. 19. The Hon'ble Supreme Court in the case of Kelvinator of India Ltd. 228 CTR 488 upheld the Full Bench decision of the Hon'ble Jurisdictional High Court of Delhi in 256 ITR 1 and has held as under: "....however, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review; he has the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termining whether the payment is revenue or capital disbursement qua the payer. It was felicitously pointed out by Macnaghten, J. in Race Course Betting Control Board v. (sic) that a "payment may be a revenue payment from the point of view of the payer and a capital payment from the point of view of the receiver and vice versa. Therefore, the decision in Maheshwari Devi Jute Mills' case (supra) cannot be regarded as an authority for the proposition that payment made by an assessee for purchase of loom hours would be capital expenditure. Whether it is capital expenditure would have to be determined having regard to the nature of the trans action and other relevant factors." 22. Considering the facts in totality, we have no hesitation in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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