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TMI Blog2021 (12) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for assessment completed u/s. 143(3). Since the period of four years from the end of the relevant assessment year expired at the time when the AO issued notice u/s. 148, we hold that such a notice and the consequential assessment order are bad in law and hence vitiated. A.Y. 2013-14 - Proviso to section 147 mandates that no reassessment can take place after four years from the end of the relevant assessment year when the original assessment was completed u/s. 143(3) and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary facts for reassessment. Here again, we find that the AO inquired about the amounts received by the assessee not offered for taxation during the course of original assessment proceedings by means of a notice u/s. 142(1) of the Act. The assessee furnished details of income of ₹ 9.26 crore not offered for taxation in its reply with the necessary justification. As evident that the AO initiated reassessment proceedings by means of notice u/s. 148 dated 29-03-2019 after four years from the end of the relevant assessment year when the original assessment was completed u/s. 143(3) and there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Tetra Pak on 12.03.2014 offering receipts of ₹ 1,89,73,041/- as tabulated below for taxation as fees for technical services at the rate of 10% under Article 12 of the India Sweden DTAA: Sr. No. Description of Receipt Amount (in Rs.) 1 Network charges, i.e. WAN and lease line, DATA charges, CIC charges 1,84,46,949/- 2 Training Expenses 5,26,092/- Total taxable transactions 1,89,73,041/- 2. The return of income for the assessment year 2012-13 was selected for scrutiny and vide notice u/s. 142(1) dated 24.11.2014, the assessee was asked to furnish the details of all payments received by the assessee from any person in India and whether the entire receipts has been considered as taxable in India. In response to the said notice, the assessee has vide letter dated 10.02.2015 submitted that an amount of ₹ 7,81,23,918/- as tabulated below was also received and the same has not been considered taxable in India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendently and differently. It has been held in a plethora of cases (ITO v Veeda Clinical Research Pvt. Ltd. 2013-TII-122-ITAT-AHM-INTL., MOU to the India-USA Tax Treaty (Example 6), Sahara Airlines Ltd. V DCIT (2003) 79 TTJ 268 (Del.), Hindalco Industries Ltd. V. ACIT (2005) 94 TTJ 944 (Mum), JCIT v. Kaiser Aluminium Technical Services Inc. ITA No. 826/Mum/99, International Tire Engineering Resources LLC In re (2009) 319 ITR 228 (AAR)) that the receipts from the area of technical training are taxable as 'fees for technical services' as the said services could not make technology available to the recipient. Further it has been held by the Hon'ble Mumbai Bench of the ITAT in the case of WNS North America Inc v. ADIT (International Taxation)-2(2), Mumbai (2013) 141 ITD 117 (Mumbai - Trib.) that the onus is on the taxpayer to produce adequate documentation before the Revenue to demonstrate that it has merely received 'reimbursement' of expenditure actually incurred on behalf of the service recipient without any markup. No supporting documents have been filed by the assessee to support the claim that the receipts of ₹ 4,82,100/- was purely on account of reimbur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. At this stage, it is relevant to note the mandate of first proviso to section 147 of the Act which provides that where an assessment has been completed u/s. 143(3), no action shall be taken under this section after expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. The assessment year under consideration is 2012-13. Original assessment u/s. 143(3) of the Act was completed on 28-03-2016. A copy of the assessment order has been placed at pages 2 onwards of the paper book. The period of four years from the end of the relevant assessment year draws to close on 31-03-2017. Notice u/s. 148, a copy placed at page 10 of the paper book, was issued on 29-03-2019, which is obviously beyond a period of four years from the end of the relevant assessment year. In such circumstances, we need to ascertain if there was any failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. From the reasons reproduced above, it is seen that the AO initiated re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not make available any Technical Knowledge, Experience or Skill. On going through the relevant material on record, it becomes emphatically clear that the assessee disclosed fully and truly all material facts necessary for the assessment during the course of original proceedings completed u/s. 143(3) and there was nothing which was withheld by it. What inference the AO draws from the material placed before him is a secondary question and matter of concern for the Department only. Insofar as the proviso to section 147 is concerned, the same gets immediately magnetized when it is proved that the original assessment was completed u/s. 143(3) and a period of four years has elapsed form the end of the relevant assessment year and further there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. 6. Adverting to the facts of the instant case, we find that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment completed u/s. 143(3). Since the period of four years from the end of the relevant assessment year expired at the time when the AO issued notice u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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