2014 (1) TMI 1630 - AT - Income Tax

Reopening 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.

Issues:
1. Validity of notice issued under section 148 of the Act after the expiry of four years.
2. Applicability of deemed profit rate on total sales made to DMRC.
3. Attribution of DMRC sales to the project office.
4. Taxation of Hyundai Rotem Korea's share of revenue.
5. Classification of the RSI contract as a 'Works' or 'Sales' contract.
6. Levying of interest under sections 234B and 234C of the Act.

Issue 1: Validity of notice under section 148 after four years
The appellant challenged the notice issued under section 148 of the Act after the expiry of four years from the relevant assessment year. The AO issued the notice based on a change of opinion, despite the appellant disclosing all material facts during the original assessment. The High Court, in a related case, held that the reopening was not justified as no new facts had emerged. The AO's conclusion was deemed invalid, leading to the appeal becoming infructuous.

Issue 2: Deemed profit rate on sales to DMRC
The dispute revolved around the application of a deemed profit rate of 10 percent on total sales to DMRC, considered excessive by the appellant. The Hon'ble DRP's decision was challenged as the actual profit was lower than 10 percent. The issue was whether only 50 percent of sales to DMRC should be attributed to Indian operations, as held by the AO.

Issue 3: Attribution of DMRC sales to project office
The AO attributed DMRC sales to the project office, leading to a disagreement with the appellant. The appellant argued that the sales were attributed to the liaison office by the AO in previous years, and no new facts warranted a change in attribution. The dispute centered on the application of the principle of restricted force of attraction to DMRC sales.

Issue 4: Taxation of Hyundai Rotem Korea's share
The appellant contended that the share of Hyundai Rotem Korea should be excluded from DMRC sales offered for taxation, as it was collected and passed on separately. Taxing the same income twice violated the basic principle of taxation, as the share was already taxed in the hands of Hyundai Rotem Korea.

Issue 5: Classification of RSI contract
The appellant disputed the classification of the RSI contract as a 'Works' contract instead of a 'Sales' contract. The nature of the contract was crucial for determining the tax implications and the correct application of relevant provisions.

Issue 6: Levying of interest under sections 234B and 234C
The revenue challenged the first appellate order that held interest under sections 234B and 234C of the Act was not chargeable. The dispute was whether the charging of interest was mandatory and consequential, as per the decision of the Hon'ble Supreme Court in a related case. The appellate authority's decision was supported by citing a relevant decision of the Hon'ble Delhi High Court, leading to the dismissal of the revenue's appeal.

In conclusion, the appellant's appeal was allowed, while the revenue's appeal was dismissed based on the detailed analysis and findings on each issue presented in the judgment by the ITAT Delhi.

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