9911796707
TMI Blog2014 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ested, the revenue alleging that the petitioner did have a PE at Noida by the name Adobe India and the petitioner emphatically denying the same. In the absence of any evidence unmistakably and indisputably establishing the existence or otherwise of the PE, we would hesitate to enter this prohibited arena in writ proceedings. It needs no citation of authority to support the proposition that the Court exercising its jurisdiction under Article 226 of cannot enter into disputed questions of fact which is best left to be resolved in the alternative remedies available to the petitioner. The conduct of the assessee has been one of defiance - mere filing of the return can never amount to submitting to the jurisdiction - The filing of the return in response to the notice under Section 148 defines the stand taken by the assessee - Section 148 says that the return called for by the notice issued under that section shall be treated as if such a return were a return required to be furnished under Section 139 of the Act - a return of income conveys the position taken by the assessee to the assessing authority. The petitioner, not having made the Noida officer aware that no income chargeab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the location of the permanent establishment (PE) of the non-resident company or the location of a source of income accruing to the company in India and that the petitioner did not have any source of income in Noida as none of its clients in India were located there, nor did the petitioner have a PE in India. It was accordingly submitted that the notice issued by the Noida officer was without jurisdiction. It would appear that there was no reply to this notice. 3. However, on 30.03.2011 the Noida officer issued notices under Section 148 of the Act seeking to reopen the petitioner s assessment for the assessment years 2004-05, 2005-06 and 2006-07. These notices were received by the petitioner on 07.04.2011 and on 26.04.2011 the petitioner wrote to the Noida officer informing him that the petitioner was already assessed in India by the respondent (Delhi officer) and, therefore, he had no jurisdiction to issue the notices. No reply appears to have been received for a period of 4 months from the Noida officer. However, on 26.09.2011 the Noida officer wrote a letter to the petitioner enclosing the reasons recorded for reopening the assessments for all the three years. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was with the respondent; (b) notice issued under Section 142(1) for the assessment year 2004-05 was barred by limitation since it was issued beyond the period of six years from the end of the relevant assessment year; (c) even assuming that the notices under Section 148 were validly issued by the Noida officer, the time limit to complete the reassessments under Section 153 of the Act would expire on 31.12.2013 and (d) the petitioner would need more time to comply with the notices issued under Section 142(1) for the assessment years 2005-06 and 2006-07. 6. On 07.01.2013 the respondent wrote to the petitioner pointing out that no returns had been filed in response to the notices issued on 30.03.2011 under Section 148 and also pointing out that despite issue of notices under Section 142(1) on 14.11.2011 to enforce compliance to the requirement of filing the return in response to notice u/s 148 , the petitioner did not file any return and calling upon the petitioner to show-cause as to why the assessment in your case may not be completed u/s. 144 read with Section 147 of the Act . The petitioner replied on 21.03.2013 and pointed out to the respondent that the notices issued unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt disposed of the objections filed by the petitioner to the reasons recorded for reopening the assessments. The points made by the respondent in this order are as follows: - (a) The petitioner has not filed any return in response to the notices issued under Section 148 and, therefore, was not entitled to file objections at this stage nor was the respondent bound to dispose of the objections, if any filed. (b) In any case the petitioner is not correct in law and on facts in asserting that the Noida officer did not have jurisdiction over the petitioner, and therefore the notices under Section 148 issued by him were invalid, and consequently the proceedings cannot be continued. (c) As per CBDT s notification No.263 issued on 14.09.2001 the jurisdiction of Directors of Income Tax (International Taxation) over a foreign company lay with the assessing officer in whose area the foreign company has a PE or a business connection. Examination of records reveals that the petitioner had a dependent agent PE in Noida in the form of Adobe India, which was also the petitioner s associated enterprise. Therefore, the Noida officer had valid jurisdiction over the petitioner and was entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amined in these proceedings taken under Article 226 since the question is hotly contested, the revenue alleging that the petitioner did have a PE at Noida by the name Adobe India and the petitioner emphatically denying the same. In the absence of any evidence unmistakably and indisputably establishing the existence or otherwise of the PE, we would hesitate to enter this prohibited arena in writ proceedings. It needs no citation of authority to support the proposition that the Court exercising its jurisdiction under Article 226 of cannot enter into disputed questions of fact which is best left to be resolved in the alternative remedies available to the petitioner. In fact the assessment and appellate authorities, including the Income Tax Appellate Tribunal, constituted under the Act as fact-finding bodies are best suited to examine whether the petitioner had a PE in Noida or not and the question of jurisdiction would depend upon the findings of those authorities. Moreover, when we are exercising discretionary jurisdiction, it is not impermissible to consider whether any real prejudice has been caused to the petitioner to justify the exercise of the extraordinary jurisdiction which i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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