9911796707
TMI Blog2025 (2) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 25 March 2021 under Section 148 of the Income Tax Act, 1961 and the impugned order dated 31 January 2022, rejecting the petitioner's objection to reopening of the assessment made by the first respondent for the assessment year 2014-15. 4. Admittedly, the impugned notice dated 25 March 2021 was issued more than four years after the end of the relevant assessment year. Therefore, in terms of the proviso to Section 147 of the Income Tax Act, the Assessing Officer could have reopened the assessment only upon recording satisfaction that the petitioner failed to fully and truly disclose all material facts necessary for the assessment. 5. Upon receipt of the impugned notice dated 25 March 2021, the petitioner sought and was furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. In view of the above facts and as per the TRC, the status of the assessee is a 'non-resident' and it has to be assessed as such. The assessee company should have been taxed at the rate applicable to foreign company. The assessment of the A.Y. 2014-15 was completed in the status of 'resident', which attracts the tax of Rs. 11,14,08,550/- @ 30% + applicable surcharge and cess, as applicable in case of a 'resident' assessee. However, since the assessee is a non resident entity it has to be taxed @ 40% +surcharge and education cess. Hence, the income has not been correctly taxed and therefore the short levy of tax of Rs. 3,54,48,175/- should be charged to the assessee. 5. In view of the above I have reasons to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was to be taxed as non-resident , then the tax rate was 40%, as opposed to the tax rate of 30%, to which the petitioner was assessed based upon resident status. Mr. Sharma submitted that these are reasonable grounds for reopening the assessment for the assessment year 2014-15. Mr. Sharma also submitted that the petitioner submitted the Tax Residency Certificate for the assessment year 2016-17. 8. We have considered Mr. Sharma's contention, but we find no merit in the same. Firstly, the above contentions do not answer Mr. Mistri's contention based upon non-compliance with the jurisdictional parameter that the assessee should have failed to fully and truly disclose the material facts necessary for assessment since the reassessment was pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. The records also show that from 1995-96 onwards, the petitioner has been assessed as a "resident" company. In these circumstances, the department could not reasonably allege any failure on the petitioner's part to disclose the material facts regarding the petitioner's status. Therefore, the reasons do not even contain any allegation of failure to disclose material facts. 11. The assessment order for 2016-17 was made on 31 December 2019. Accordingly, there is no question of the petitioner referring to this assessment order or even imagining that such an order would be made in the future. Thus, based on the reasons furnished to the petitioner as also the other material on record, we are satisfied that the jurisdictional parameter about f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is sought to be reopened beyond the period of four years, there must be a failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment. The retrospective amendment of law by Parliament would negate the inference that is sought to be drawn from the failure to disclose material facts. 14. The facts in the present case are even stronger than those in DIL Ltd. (supra). Although the reasons do not allege a failure to disclose material facts, the other material on record shows that, in fact, there was no failure to disclose material facts. 15. On the above grounds, we quash and set aside the impugned notice dated 25 March 2021 and the consequent order dated 31 January 2022. 16. At Mr. Sharma's r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
