2017 (10) TMI 679 - AT - Income Tax

Validity of the notice u/s 147 & 148 - income accrued in India - PE in India - whether Assessee company has established the permanent establishment and the office of the Assessee was attribution of the income to the Assessee company - Held that - The activity of the Assessee company was commercial in nature and these companies were paying consultation fees while in the instant case, nothing was found contrary to the subject approved by the RBI in its letter dated 19.05.1995. In view of the said discussion we arrived at this conclusion that the no activity was done by the Assessee out of the purview of the sanction of the RBI dated 19.05.1995 and there is no income of the Assessee accrued which is taxable in India. Nothing came into notice that the objection was disposed of by the relevant assessing authority, therefore, view of the said law settled in KSS Petron Pvt, Ltd. Vs. ACIT Circle-10-Mumbai 2016 (10) TMI 1112 - BOMBAY HIGH COURT we are of the view that notice u/s 147/148 is not liable to be sustainable in the eye of law, therefore, we set aside the same and accordingly this issue is the decided the appeal against the Revenue.

Summary

Issues Involved:
1. Validity of the reassessment proceedings under sections 147 and 148 of the Income Tax Act, 1961.
2. Determination of income attributable to the liaison office in India.
3. Assessment of interest under sections 234B, 234C, and 234D of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Validity of the reassessment proceedings under sections 147 and 148 of the Income Tax Act, 1961:

The Assessee challenged the validity of the notice issued under sections 147 and 148 of the Income Tax Act, 1961, arguing that the liaison office in India was only engaged in preparatory and auxiliary activities such as recruitment and training of crew members, and did not generate any income taxable in India. The Assessee contended that the Assessing Officer (AO) had not disposed of the objections raised against the reassessment notice, violating the principles of natural justice. The Tribunal found that the AO had based the reassessment on the income of another company, M/s Freedom Shipping Company Ltd., without showing any income generated by the Assessee. The Tribunal concluded that the notice under sections 147/148 was not sustainable in law and set it aside.

2. Determination of income attributable to the liaison office in India:

The AO had determined that the liaison office in India constituted a Permanent Establishment (PE) and had a business connection from which income accrued to the Assessee. The AO estimated the income based on the fees received by M/s Freedom Shipping Company Ltd. for similar services and assessed the Assessee's income at ?3,34,17,555 for the AY 2005-06. The Tribunal noted that the liaison office was only authorized to recruit Indian crew for ships managed by the Assessee and did not engage in any income-generating activities. The Tribunal found no evidence of income generated by the Assessee in India and concluded that there was no business connection justifying the income attribution by the AO. Consequently, the Tribunal set aside the assessment order.

3. Assessment of interest under sections 234B, 234C, and 234D of the Income Tax Act, 1961:

The Tribunal did not specifically address the issue of interest under sections 234B, 234C, and 234D, as the primary issue of the validity of the reassessment proceedings was decided in favor of the Assessee. Since the reassessment notice was set aside, the question of interest became academic and was not further discussed.

Additional Appeals:

The Tribunal noted that the facts and issues in the other appeals (ITA NO.2604/M/2014, ITA NO.2605/M/2014, ITA NO.3324/M/2014, and ITA NO.7524/M/2014) were similar to those in ITA NO.2603/M/2014. Therefore, the findings and conclusions in ITA NO.2603/M/2014 were applied to these appeals as well. The reassessment notices under sections 147/148 were set aside, and the appeals were allowed in favor of the Assessee.

Conclusion:

The Tribunal allowed the appeals filed by the Assessee, setting aside the reassessment notices and the assessment orders based on those notices. The Tribunal concluded that the liaison office in India did not generate any taxable income, and the reassessment proceedings were not justified. The appeals were decided in favor of the Assessee against the Revenue.