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TMI Blog2014 (1) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessment proceedings was not enhanced as is apparent from the assessment order and it was only the rate of tax which has been increased from 15% TO 20% - Since there is no change in the income declared and income assessed by the Assessing Officer, it cannot be said that there were any concealment of income – the order of the CIT(A) upheld – Decided against Revenue. - I.T.A. No.5631/Del/2011 - - - Dated:- 31-7-2013 - Shri Rajpal Yadav And Shri T. S. Kapoor,JJ. For the Appellant : Shri Sameer Sharma, Sr. DR. For the Respondent : Shri Salil Kapoor, Shri Sanat Kapoor Shri Vikas Jain, Advocates. ORDER Per TS Kapoor, AM:- This is an appeal filed by the revenue against the order of Ld CIT(A) dated 1.8.2011. The grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities of the L.O. as claimed by the assessee was limited to carrying out of liaison activities in India and to spread awareness about the products of the Nortel Group in India. ii) The Company incorporated in India non 25.7.1996 by the name of Nortel Network India Private Limited (Nortel India). This is a wholly owned subsidiary of Notel Network Mauritius Nortel India is stated to have been engaged in providing: a) Marketing services to Nortel Group Companies. b) Installation, testing and commissioning servicesd. c) Technical services including repair maintenance of equipment supplied by the group. On the basis of above fact, the Assessing Officer held that nature of services provided by the assessee were not in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of assessment proceedings u./s 143(3) and therefore initiation of proceedings u/s 147 was merely due to change of opinion by the Assessing Officer and therefore was not justified. iii) The appellant neither deliberately attempted to contravene the provisions of the Act or tax treaty to evade payment of tax levied there under. The appellant was of the bona fide belief that the technical services rendered by it to Nortel India during the year under appeal qualified as FIS under Article 12 of the treaty and therefore taxable at the rate of 15% in view of the specific exclusion provided under Article 5(2)(1) of treaty for included services defined in article 12 and rendered by the employees of the non resident of India. iv) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the facts before him held that income of the appellant was in the nature of FIS and was taxable at the rate of 15% under the treaty leads to a conclusion that it was possible to have different view other than the one taken by the Assessing Officer at the time of making assessment order u/s 147. Subsequently the Assessing Officer changed its mind and held that the appellant had a PE in India as the appellant's case was covered u/s 5(2)(1) of the treaty and its income was taxable u/s 4D read with section 115A at the rate of 20% . Therefore, without going to the details of cases cited by the appellant, one can easily reach a conclusion that in the facts and circumstances of the case, the issue involved was such that it was possible to ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld DR submitted that there was a PE in India and therefore, Assessing Officer increased taxation from 15% to 20% and Ld CIT(A) struck the penalty on the basis that there was two opinions. It was further argued that assessee had deliberately declared its income on the basis that it had no PE in India whereas the complete facts and circumstances pointed out the facts that assessee had PE in India. Therefore, the Assessing Officer has rightly passed the penalty order. 7. The Ld AR, on the other hand, relied heavily on the order of Ld CIT(A) and submitted that there was no change in the income returned and income assessed so therefore the provision of section 271(1)(c ) were not applicable as no inaccurate particulars were furnished and Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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