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2015 (8) TMI 517 - HC - Income TaxLegality of reassessment proceedings - ITAT held it to be illegal - non deduction of TDS on management service fee paid - Held that - There was a failure by the AO to comply with the mandatory requirement of disposing of the objections of the Assessee to the reopening in terms of the law explained by the Supreme Court in G.K.N. Driveshafts (India) Ltd. (2002 (11) TMI 7 - SUPREME Court) as well as on account of the failure of the Revenue to challenge before the ITAT the order of the CIT (A) deleting on merits the disallowance made by the AO of the management service fee consequent upon reopening of the assessment, there appears to be no need to examine the issue projected by the Revenue in this appeal viz., the justification for re-opening the assessment under Section 147/148 of the Act. The ITAT relied essentially on the decision of this Court in Commissioner of Income Tax v. Orient Craft Ltd. (2013 (1) TMI 177 - DELHI HIGH COURT) and Commissioner of Income Tax v. Smt. Jyoti Devi (2008 (7) TMI 954 - RAJASTHAN HIGH COURT) to answer the issue in favour of the Assessee. - Decided against revenue.
Issues Involved:
1. Justification of reassessment proceedings under Section 147/148 of the Income Tax Act, 1961. 2. Compliance with the mandatory procedure for disposing of objections to the reopening order. 3. Validity of the disallowance of management service fees. Issue-Wise Detailed Analysis: 1. Justification of Reassessment Proceedings under Section 147/148: The Revenue questioned whether the ITAT was justified in holding that the reassessment proceedings under Section 147/148 were not legally initiated. The AO had issued a notice under Section 148 based on the Statutory Auditor's report that management service fees were paid without deducting tax at source, which was inadmissible under Section 40(a)(i). The ITAT relied on the Delhi High Court's decision in CIT v. Orient Craft Ltd. and the Rajasthan High Court's decision in CIT v. Smt. Jyoti Devi, concluding that the AO had no new tangible material to justify the reopening of the assessment. The High Court upheld this view, noting that the AO's reasons were based on the audit report already enclosed with the return, and there was no new material to form a belief that income had escaped assessment. 2. Compliance with Mandatory Procedure for Disposing of Objections: The Assessee had filed objections to the reopening of the assessment, which the AO failed to dispose of by a speaking order, as mandated by the Supreme Court in G.K.N. Driveshafts (India) Ltd. v. ITO. The CIT(A) acknowledged this procedural lapse but deemed it a curable technical mistake, not rendering the assessment order illegal. However, the High Court held that the CIT(A) erred by not quashing the reopening order and the consequent assessment due to the AO's failure to comply with the mandatory procedure. 3. Validity of the Disallowance of Management Service Fees: The CIT(A) examined the merits of the AO's disallowance of management service fees and found in favor of the Assessee, citing a 'Nil' withholding certificate issued under the DTAA between India and the USA. This certificate negated the need for withholding tax under Section 195. The CIT(A) also noted that similar expenses were not disallowed in the subsequent AY 2004-05. The Revenue did not challenge this finding before the ITAT, rendering their appeal on the reassessment issue academic. The High Court affirmed that without challenging the CIT(A)'s deletion of the disallowance on merits, the Revenue's appeal had no substantial ground. Conclusion: The High Court dismissed the Revenue's appeal, holding that no substantial question of law arose from the ITAT's order. The AO's failure to comply with the mandatory procedure for disposing of objections and the lack of new tangible material to justify the reassessment were critical factors in the decision. The CIT(A)'s findings on the merits of the disallowance of management service fees, unchallenged by the Revenue, further weakened their case. The High Court reiterated the necessity for the AO to have a valid "reason to believe" for income escapement, consistent with judicial interpretations and the principles established in CIT v. Orient Craft Ltd.
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