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2014 (1) TMI 1630 - ITAT DELHIReopening of assessment - Notice u/s 148 - DRP failed in appreciating the fact that actual profit made by the appellant is less than 10 percent on the total percent on the total sales - Held that:- The assessee, a non-resident, operating in India through liaison office and project office had formed a consortium which was awarded a contract by DMRC for a lump sum consideration. For assessment year 2002-03 it was found that assessee did not include sales to DMRC effected through project office which amount represented milestone payments received abroad in foreign currency and same was not offered to tax in India as income of project office. The AO reopened and concluded assessment. However it was found that turn over or sales made to DMRC and expenses of project office which was a permanent establishment was disclosed at time of original assessment. - Since this issue was a matter of conclusion to be drawn from the material facts and not a matter relating to furnishing material details and particulars i.e. primary facts, conclousion drawn by the AO could not be attributed to failure of petitioner to disclose fully and truly all material facts. It was held that since no new facts or particulars had come to the knowledge of AO reopening was not justified. Levy of interest u/s 234B - Held that:- High Court [2010 (8) TMI 37 - DELHI HIGH COURT] has been pleased to hold that if a person who had to make payments to non resident, had defaulted in deducting tax at source from such payments, non-resident would not be absolved from payment of taxes thereon, however in such a case non-resident would be liable to pay tax and question of payment of advance tax would not arise. It was held that since assessee was a nonresident, entire tax was to be deducted at source on payments made by payee to it and there was no question of payment of advance tax by assessee and therefore it would not be permissible for revenue to charge any interest u/s 234B from the assessee. - Decided in favour of assessee.
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