2013 (2) TMI 269 - HC - Income Tax

Reopening of assessment - short levy of tax - income earned by the assessee is to be assessed under the head capital gains as per the provisions of section 115AD r.w. Article 13 of the DTAA between India and Singapore instead of business income as claimed by the assessee - proceedings initiated under Section 263 as AO had erred in allowing to the Petitioner the benefit of Article 13(4) of the India Singapore DTAA - Held that - The record before the Court would indicate that the reasons for reopening the assessment were disclosed to the Petitioner initially by a letter dated 15 October 2007 of the DDIT (International Taxation)-3(2), Mumbai and once again on 7 January 2008 by a communication of the DDIT (International Taxation)-4(2), Mumbai. The latter communication specifically intimated to the Petitioner that requisitions in terms of the decision of the Supreme Court in the case of GKN Driveshafts as referred have, therefore, been met with . Following the disclosure of reasons for reopening the assessment, nearly a year elapsed before an order of assessment was made on 29 December 2008. No steps were taken to move this Court, if the Petitioner had any subsisting grievance that its objections to the reasons for reopening were not dealt with by a speaking order. The Petitioner chose to stand by and wait until an order of assessment was passed on 29 December 2008. The Petitioner participated in the proceedings before the AO which resulted in the order of assessment dated 29 December 2008. In the proceedings, pursuant to the notice under Section 263, the Petitioner urged that it had not been provided enough time to furnish details during the proceedings and it was on this basis that the proceedings were remitted back to the AO for fresh consideration. In that view of the matter, following the order under Section 263, the proceedings have been restored to the Assessing Officer to frame a fresh assessment order de novo after affording the Petitioner an opportunity of being heard. There is no merit in the contention of the Petitioner that the Assessing Officer must now first dispose of its objections to the reopening of the assessment before proceeding to frame an assessment. The proceedings have been restored before the Assessing Officer for passing a fresh order of assessment. It is now too late in the day for the Petitioner to assert that its objections to the reasons on the basis of which the assessment is sought to be reopened must be addressed at this stage. Having perused the reasons on the basis of which the assessment is sought to be reopened, AO has not acted outside his jurisdiction while issuing a notice under Section 148 - against assessee.

Summary

Issues:
Challenging notice for reopening assessment under Section 148 of the Income Tax Act, 1961 for A.Y. 2005-06; Reassessment based on short term capital gain treated as business income; Compliance with Double Taxation Avoidance Agreement (DTAA) between India and Singapore; Alleged error in allowing benefit under Article 13(4) of the India Singapore DTAA; Failure to address objections to reopening assessment; Jurisdiction of Assessing Officer in issuing notice under Section 148.

Analysis:
The petitioner challenged a notice issued under Section 148 for reopening the assessment for A.Y. 2005-06, claiming that its net business income was not taxable in India under the India Singapore DTAA. The Senior Audit Officer highlighted a short term capital gain treated as business income, leading to a notice under Section 148. The reasons for reopening referred to Section 115AD and the DTAA, stating that capital gains should be taxed in India. The Assessing Officer issued a notice under Section 143(2) to explain issues related to the return of income.

The Assessing Officer, in the order of assessment, held the income as capital gains but erroneously allowed benefits under the DTAA. Subsequently, a notice under Section 263 was issued, pointing out errors in the assessment order. The case was sent back for a fresh assessment. The petitioner argued that objections to reopening were not addressed, but the court found no merit in this claim. The court clarified that the Assessing Officer acted within jurisdiction in issuing the notice under Section 148.

The court emphasized that the current stage was not for evaluating the merits of the assessment proceedings but only to determine if there was a reason to believe income had escaped assessment. As such, the court dismissed the petition, stating that no case for interference was established, without delving into the merits of the income assessment.

This detailed analysis covers the issues raised in the legal judgment, addressing the challenges to the notice for reassessment, compliance with the DTAA, errors in assessment, and the jurisdiction of the Assessing Officer.