2023 (1) TMI 1175 - HC - Income Tax

Reopening of assessment u/s 147 - income chargeable to tax accrues or arises in India - whether the investment in shares of Agile by the petitioner was a capital account transaction, given the fact that there is no allegation of round-tripping - HELD THAT - We may note, that there is no reference to Section 115A of the Act, for whatever its worth, either in the show-cause notice or in the impugned order passed by the AO. As to whether the said provisions are, at all, applicable to a non-resident company is a moot point which the AO will have to decide. Having regard to the overall facts, we are of the view, that this writ petition can be disposed of with the following directions (i) The impugned order passed u/s 148A(d) of the Act and the consequent notice of even date issued under Section 148 of the Act are set aside. (ii) The AO will carry out a de novo exercise. The AO will, inter alia, deal with the petitioner s contention, that the transaction in issue is a capital account transaction, and that no income whatsoever chargeable to tax accrues or arises in India. (iii) The AO will accord personal hearing to the authorized representative of the petitioner. For this purpose, the AO will issue a notice fixing the date and time of hearing.

Summary

Issues involved:
Challenge to order under Section 148A(d) of the Income Tax Act, 1961 and notice issued under Section 148 of the Act regarding alleged escapement of income chargeable to tax from share purchase transaction.

Analysis:
The petitioner challenged an order passed under Section 148A(d) of the Income Tax Act, 1961, and the consequent notice issued under Section 148 of the Act, related to the purchase of shares of an Indian company. The petitioner contended that the transaction was a capital account transaction, and no income chargeable to tax accrued or arose in India. The respondent/revenue alleged income escapement and initiated reassessment without jurisdiction. The respondent argued that the non-filing of a return resulted in deeming escapement of income. The court noted the absence of allegations of round-tripping and directed a de novo exercise by the Assessing Officer (AO).

The court highlighted that the central issue was whether the investment in shares constituted a capital account transaction, especially in the absence of round-tripping allegations. It observed that the order lacked a detailed examination of this central issue and other objections raised by the petitioner. The court directed the AO to consider the petitioner's contentions, provide a personal hearing, issue a speaking order, and furnish a copy to the petitioner. The court set aside the impugned order and notice, emphasizing the need for a thorough reevaluation by the AO.

The court emphasized the importance of addressing whether Section 115A of the Act applied to a non-resident company like the petitioner, a point left unaddressed in the previous proceedings. The court instructed the AO to consider this aspect while conducting the reassessment. The court disposed of the writ petition with directions for a comprehensive reassessment process, ensuring procedural fairness and adherence to legal requirements.

In conclusion, the court's judgment focused on the need for a detailed assessment of whether the share transaction constituted a capital account transaction and the applicability of relevant provisions to the petitioner's case. The court's directions aimed to ensure a fair and thorough reassessment process, providing the petitioner with an opportunity to present its case and challenge any adverse decision through appropriate legal remedies.