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TMI Blog2014 (1) TMI 1630X X X X Extracts X X X X X X X X Extracts X X X X ..... The AO reopened and concluded assessment. However it was found that turn over or sales made to DMRC and expenses of project office which was a permanent establishment was disclosed at time of original assessment. - Since this issue was a matter of conclusion to be drawn from the material facts and not a matter relating to furnishing material details and particulars i.e. primary facts, conclousion drawn by the AO could not be attributed to failure of petitioner to disclose fully and truly all material facts. It was held that since no new facts or particulars had come to the knowledge of AO reopening was not justified. Levy of interest u/s 234B - Held that:- High Court [2010 (8) TMI 37 - DELHI HIGH COURT] has been pleased to hold that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed fully and truly all material facts necessary to complete the assessment proceedings. 2. Without prejudice, the Ld. DRP/AO has erred in issuing directions to learned AO to apply deemed profit rate of 10 percent on the total sales made to DMRC by following the order passed by DIT (Intl. Tax) u/s 264 of the Act on 16.1.2003, such rate being highly execessive, exorbitant and arbitrary. The Hon ble DRP failed in appreciating the fact that actual profit made by the appellant is less than 10 percent on the total percent on the total sales. Therefore such profit rate being highly excessive, arbitrary and illogical may be quashed. 3. That the learned DRP/AO erred in not appreciating that DMRC sales were attributed to the LO by the Ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 234C of the Act. 2. At the outset of hearing the Ld. AR pointed out that the issue raised in ground No. 1 questioning the validity of notice issued u/s 148 of the Act has now become infructuous as in between the Hon ble Jurisdictional Delhi High Court vide its order dated 1.5.2012 in WP No. 13983 of 2009 in the case of assessee itself for asstt. year 2002-03 has been pleased to hold that the reopening was not justified. The Ld. DR was having no serious objection to the submission of the Ld. AR. We accordingly heard the parties on this issue first. Ground No. 1 3. The Ld. AR submitted that the AO had issued notice u/s 148 of the Act to the assessee after the expiry of four years from the end of the relevant assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and vide its order dated 1.5.2012 the Hon ble High Court was pleased to hold that reopening was not justified. 4. The Ld. DR on the other hand tried to justify the orders of the authorities below on the issue of validity of notice issued u/s 148 of the Act. 5. The assessee, a non-resident, operating in India through liaison office and project office had formed a consortium which was awarded a contract by DMRC for a lump sum consideration. For assessment year 2002-03 it was found that assessee did not include sales to DMRC effected through project office which amount represented milestone payments received abroad in foreign currency and same was not offered to tax in India as income of project office. The AO reopened and concluded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re mandatory and consequential in nature in view of the decision of Hon ble Supreme Court in the case of Anjum Ghaswala 252 ITR 1 (SC). 9. Ld. AR on the other hand tried to justify the first appellate order with this submission that the issue raised in this ground is fully covered in the case of assesses itself by the decision of Hon ble Delhi High Court in the assessment year 2001-02 reported in (2010) 194 Taxman 495 (Delhi) in the case of Director of Income Tax vs. Jacabs Civil Incorporated /Mitsubishi Corporation. 10. Having gone through the above cited decisions of Hon ble Delhi High Court in the case of assessee itself for the assessment year 2001-02 (supra) on an identical issue we find that the issue raised in the ground is ful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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