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2011 (4) TMI 441 - HC - Income TaxReopening - DTAA between India and France - Onshore supply, Onshore services and Offshore supply - TDS u/s 195 - It is asserted that PGCIL, a public sector company, had awarded a turnkey project to Areva T&D SA, the petitioner herein, and it was responsible for completing the offshore supply, onshore supply and onshore services contracts - As the installation and assembly projects continued for a period of more than 6 months in all the 4 contracts, therefore, the assessee had construction PE also in India - assessee has always obtained orders under section 197 of the Act without disclosing the full facts relating to the contracts, some of these facts are discussed in these reasons and assessee has not filed its return of income for any of the assessment years - Initiation of proceedings u/s 147 upheld.
Issues Involved:
1. Retrospective application of an order under Section 197(1) of the Income-tax Act, 1961. 2. Initiation of reassessment proceedings under Section 147/148 of the Income-tax Act, 1961. 3. Change of opinion as a basis for reassessment. 4. Nature and finality of certificates issued under Sections 195 and 197 of the Income-tax Act, 1961. Detailed Analysis: 1. Retrospective Application of an Order under Section 197(1) of the Income-tax Act, 1961: The petitioner contended that the order passed under Section 197(1) on 11.12.2007 should not have retrospective effect, nullifying earlier orders. The court agreed, holding that the order dated 11.12.2007 would apply prospectively, only for the financial year 2007-08, and not retrospectively. 2. Initiation of Reassessment Proceedings under Section 147/148 of the Income-tax Act, 1961: The petitioner challenged the notice issued under Section 148 for the assessment year 2005-06, arguing that it was based on a mere change of opinion. The court examined the reasons recorded by the assessing officer for reopening the assessment, which included the petitioner's contractual obligations and responsibilities, frequent visits by its employees to India, and the nature of the contracts with PGCIL. The court found that the assessing officer had prima facie reasons to believe that income chargeable to tax had escaped assessment, justifying the initiation of reassessment proceedings. 3. Change of Opinion as a Basis for Reassessment: The petitioner argued that the reassessment was based on a change of opinion, which is not permissible. The court referred to the Supreme Court's decision in Commissioner of Income-tax v. Kelvinator of India Ltd., which held that a mere change of opinion does not confer jurisdiction to initiate reassessment. However, the court distinguished this case, noting that no return had been filed by the petitioner, and the reasons recorded by the assessing officer were based on new information and material facts, not merely a change of opinion. 4. Nature and Finality of Certificates Issued under Sections 195 and 197 of the Income-tax Act, 1961: The court emphasized that certificates issued under Sections 195 and 197 are provisional and tentative, not binding in regular assessment proceedings. It referred to decisions in Dodsal (P.) Ltd. v. Commissioner of Income-tax and Commissioner of Income-tax v. Elbee Services (P.) Ltd., which held that orders under Section 195(2) are not conclusive and do not preclude the department from taking a contrary view in assessment proceedings. The court concluded that the opinion expressed in certificates under Sections 195 and 197 is interim in nature and does not debar the assessing officer from initiating reassessment proceedings under Section 147. Conclusion: The court dismissed the writ petitions, holding that the reassessment proceedings were validly initiated based on prima facie reasons to believe that income had escaped assessment. The court clarified that the issues of tax liability and permanent establishment in India would be decided in the assessment proceedings, and no final opinion was expressed on those matters. The court also noted that the certificates issued under Sections 195 and 197 are provisional and do not preclude reassessment.
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