2014 (11) TMI 564 - HC - Income Tax

Reopening of assessment u/s 147 r.w. section 148 Indo-UK treaty - Full and true disclosure of facts made or not - Held that - Income of the partnership having escaped assessment which escapement was noticed subsequently as indicated in the reasons supplied and as the partnership assessee had failed to disclose fully and truly all material facts necessary for its assessment for the earlier AYs from 1997-98 onwards, the assessment u/s 143(3) made earlier of the petitioner no.1 could not be relied upon as an assessment made of the relevant year relating to the partnership the AO has reasons to believe that income chargeable to tax of the partnership for AYs prior to the return filed by it for AY 2002-03 as New Case-1st Year had escaped assessment cannot be said to be perverse - the notice was not time barred under the first proviso to section 147 of the Act and thereby saved from the time bar prescribed under section 149 - Whether or not the same income stood already disclosed and exempted from tax as income assessed of the petitioner no.1 as assessee being a partner of the partnership or such income of the partnership had escaped assessment would be a question to be gone into and answered in the assessment sought to be made pursuant to the issuance of the notice - this court cannot find the partnership had made full disclosure. Scope of definition u/s 2(31) - relief under Indo-UK treaty - Held that - The Revenue in treating the partnership as an assessee and seeking to assess income of it which had escaped assessment is for the purpose of charging tax on the income of the partnership, treating it as a person liable to be charged with the levy of income tax under the section - In doing so the revenue has to treat the partnership as a person within the definition provided of person u/s 2(31)(iv) of the Act thus, the notice for reopening is set aside Decided in favour of assessee.

Issues Involved:
1. Validity of the notice issued under section 148 of the Income Tax Act, 1961.
2. Disclosure obligations and assessment of income from international shipping operations.
3. Applicability of Double Taxation Avoidance Agreements (DTAA) between India-UK and India-Netherlands.
4. Jurisdictional authority for reassessment under section 172(2) of the Income Tax Act, 1961.
5. Whether the partnership is considered a taxable entity under the Indo-UK Treaty.

Issue-wise Detailed Analysis:

1. Validity of the Notice Issued Under Section 148 of the Income Tax Act, 1961:
The petitioners challenged the notice dated 25th March 2004 issued under section 148, arguing that the income had already been assessed and disclosed. The Revenue issued the notice based on the belief that income of Rs. 18,12,63,944 had escaped assessment. The court found that the notice was not time-barred under section 147 and 149 of the Act, as the partnership had failed to disclose fully and truly all material facts necessary for its assessment for the earlier assessment years from 1997-98 onwards.

2. Disclosure Obligations and Assessment of Income from International Shipping Operations:
The petitioners argued that they had made full disclosure regarding their business operations and that the income from international shipping was assessed and exempted under Article 9 of the India-UK DTAA. The Revenue contended that the partnership had not disclosed its income from shipping operations in India for the assessment year 1997-98. The court found that the revised return filed by the petitioner no.1 did not mention the partnership, leading to a conclusion that the partnership had not made full disclosure.

3. Applicability of Double Taxation Avoidance Agreements (DTAA) Between India-UK and India-Netherlands:
The petitioners argued that the income from international shipping operations was exempt from tax in India under the India-UK and India-Netherlands DTAAs. The court examined the relevant clauses of the India-UK Treaty, particularly Articles 1, 3, 4, and 9. The court found that the partnership, being a firm under section 2(23)(i) of the Income Tax Act, 1961, is considered a person under section 2(31)(iv) of the Act, and thus covered by the DTAA.

4. Jurisdictional Authority for Reassessment Under Section 172(2) of the Income Tax Act, 1961:
The petitioners contended that the jurisdiction for reassessment under section 172(2) lies solely with the respective port officers where the ships arrive and leave. The court did not find this objection sufficient to invalidate the notice, as the main issue was the non-disclosure of income by the partnership.

5. Whether the Partnership is Considered a Taxable Entity Under the Indo-UK Treaty:
The Revenue argued that the partnership was not a resident of the UK and thus not entitled to the benefits of the Indo-UK Treaty. The court concluded that the partnership, being a firm under Indian law, is considered a person under the Income Tax Act, 1961, and thus covered by the DTAA. The court held that the Revenue's case that the partnership is not covered by the convention fails.

Conclusion:
The court quashed the impugned notice dated 25th March 2004 issued under section 148 of the Income Tax Act, 1961, to P&O Nedlloyd (Partnership), finding that the partnership was entitled to the benefits of the India-UK DTAA and that the notice was unjust. The writ petition was decided in favor of the petitioners, and the notices for subsequent assessment years were also set aside and quashed. There was no order as to costs.

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