2013 (1) TMI 259 - AT - Income Tax

Validity of the orders passed under section 153C - Permanent Establishment (PE) in India through which assessee carries out its sales in India - AO held that 90% of the business income of assessee is attributable to its Indian PE - interest u/s. 234A and 234B - Held that - There is no satisfaction recorded by AO before initiating proceedings under section 153C. Inspite of giving sufficiently adequate time to the Revenue for production of the necessary records and considering the fact that AO refused to allow inspection to assessee as recorded by the bench on 20.04.2011 no option but to conclude that no satisfaction was recorded by AO before issuance of notice under section 153C. The Revenue has not been able to show any satisfaction recorded either in the case of searched person or in the case of assessee and consequently in view of the principles laid down by the Hon ble Supreme Court in the case of Manish Maheshwari vs. ACIT 2007 (2) TMI 148 - SUPREME COURT OF INDIA a notice issued under section 153C r.w.s. 153A is liable to be held as invalid. Thus, the consequential assessments passed under section 153C r.w.s. 144C are annulled on account of the invalidity of the notices under section 153C. Assessee s additional grounds are accordingly allowed in all the impugned assessment years. Since assessee s additional ground is allowed on the preliminary issue of jurisdiction, there is no need for adjudicating the issues on merit in any of the assessment years. Accordingly, the other grounds raised are considered academic and hence, not adjudicated - in favour of assessee.

Issues Involved:
1. Permanent Establishment (PE) in India
2. Attribution of profits
3. Estimation of business income taxable in India
4. Non-consideration of details placed on record
5. Levy of interest under sections 234A and 234B of the Income-tax Act, 1961
6. Validity of order passed under section 153C of the Income Tax Act, 1961

Issue-wise Detailed Analysis:

1. Permanent Establishment (PE) in India:
The appellant contested the Assessing Officer's (AO) decision that it had a PE in India through which it carried out sales. The appellant argued that, based on the facts and prevailing law, it did not have a PE in India and that the AO's conclusions were unsupported by relevant material and overlooked contrary evidence. The appellant requested a recomputation of its total income.

2. Attribution of Profits:
The AO attributed profits to the appellant's Indian operations. The appellant argued that Ingram Micro India Ltd. had been appropriately remunerated through an incentive mechanism, and no further attribution of income was warranted. The appellant sought the deletion of the addition made by the AO and a recomputation of its total income.

3. Estimation of Business Income Taxable in India:
The AO held that 90% of the appellant's business income was attributable to its Indian PE. The appellant argued that this attribution was erroneous and illegal, and requested a recomputation of its total income.

4. Non-Consideration of Details Placed on Record:
The appellant contended that the AO erred by not considering all the details placed on record, thereby violating the principles of natural justice.

5. Levy of Interest under Sections 234A and 234B of the Income-tax Act, 1961:
The appellant argued that, being a non-resident, it should not be subject to interest under sections 234A and 234B. The appellant sought the deletion of the interest levied by the AO.

6. Validity of Order Passed under Section 153C of the Income Tax Act, 1961:
The appellant raised additional grounds challenging the validity of the order passed under section 153C, arguing that the AO did not comply with mandatory provisions and did not record the required satisfaction before initiating proceedings. The appellant cited legal precedents to support its claim that the assessment order was void ab initio.

Judgment Analysis:

Permanent Establishment (PE) in India:
The tribunal examined the AO's conclusion that the appellant had a PE in India. The tribunal noted that the AO's decision was based on documents and email correspondence seized during a search of Ingram Micro India Pvt. Ltd./Tech Pacific (India) Ltd. The AO concluded that the appellant had a PE in India and attributed 90% of its business income to the Indian PE.

Attribution of Profits:
The tribunal considered the appellant's argument that Ingram Micro India Ltd. had been appropriately remunerated and that no further attribution of income was necessary. The tribunal did not specifically address this issue due to the annulment of the assessment orders on jurisdictional grounds.

Estimation of Business Income Taxable in India:
The tribunal noted that the AO attributed 90% of the appellant's business income to its Indian PE, based on the directions of the Dispute Resolution Panel (DRP). However, the tribunal did not adjudicate this issue on merits due to the annulment of the assessment orders on jurisdictional grounds.

Non-Consideration of Details Placed on Record:
The tribunal acknowledged the appellant's contention that the AO did not consider all the details placed on record. However, this issue was not specifically addressed due to the annulment of the assessment orders on jurisdictional grounds.

Levy of Interest under Sections 234A and 234B of the Income-tax Act, 1961:
The tribunal did not specifically address the issue of interest levy under sections 234A and 234B due to the annulment of the assessment orders on jurisdictional grounds.

Validity of Order Passed under Section 153C of the Income Tax Act, 1961:
The tribunal focused on the validity of the proceedings under section 153C. The tribunal found that the AO did not record the required satisfaction before initiating proceedings under section 153C. Despite repeated directions to the Revenue to produce the relevant records, no satisfaction note was provided. The tribunal cited legal precedents, including the Supreme Court's judgment in Manish Maheshwari vs. ACIT, to support its conclusion that the absence of recorded satisfaction rendered the proceedings invalid. Consequently, the tribunal annulled the assessment orders for all the assessment years in question.

Conclusion:
The tribunal allowed the appeals filed by the appellant, annulling the assessment orders passed under section 153C r.w.s. 144C due to the invalidity of the notices under section 153C. The tribunal did not adjudicate the other issues on merits, considering them academic in light of the preliminary jurisdictional issue.

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