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TMI Blog2022 (1) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in the impugned order dated 27th February 2017 at paragraph 4.1.2 and paragraph 4.1.3. Therefore, entire issue regarding petitioner paying huge reimbursement cost on account of salary reimbursement cost of its employee every year was in the active consideration before the Assessing Officer. Shri Sharma was right in stating that this issue has not been discussed specifically in assessment order. But it is settled, law as held in Aroni Commercials Ltd. [ 2014 (2) TMI 659 - BOMBAY HIGH COURT] once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment. It is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. We are satisfied that it is nothing but a change of opinion on the part of the new AO, who issued the notice u/s 148 of the Act. Change of opinion does not constitute justification and/or reasons to believe income chargeable to tax has escaped assessment. - Decided in favour of assessee. - K.R. SHRIRAM N. J. JAMADAR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diaries, in turn, subcontract some of the contract work to petitioner, for the task of execution. 7. The installation and implementation of the product at the location of the overseas customers requires the presence and supervision of technical personnel. These personnel are temporarily seconded by petitioner on employment basis to the overseas subsidiaries to perform such functions. During the period of secondment, the personnel are kept on employment and payroll of the overseas subsidiaries, which, meets their salary and related expenses. In terms of the Marketing Services Agreement entered into between petitioner and the overseas subsidiaries, these expenses are then reimbursed by petitioner to the said subsidiaries, on a cost to cost basis. 8. For the assessment year under consideration, A.Y. 2013-14, petitioner filed its return of income on 29th November 2013. The return of income was processed and an intimation under section 143(1) of the Act was issued. 9. Petitioner's case was selected for scrutiny assessment and in the course of assessment, petitioner filed, inter-alia, a copy of its Audited Financial Statements, Tax Audit report in Form 3CD under section 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian company. Further, stated that these expenses are incurred during the course of business activity of the Indian company for earning income from the sources situated outside India and hence the same is not taxable as Fee for Technical Services (FTS). Also, submitted that there was no service made available to the Indian company due to the fact that the service was actually rendered by the Indian company. However, the contentions of the assessee were rejected on the following grounds : 5. The nature of expenses under the head Employee Cost in the note 30 in the financial year i.e., F.Y. 2014-15 and in Note 31 in F.Y. 2012-13 is the same. Although further break-up of employee cost of ₹ 655.277 Crore in A.Y. 2013-14 is not available on record, a sum of ₹ 591.911 Crore (90.33 % of total employee cost) is liable to be disallowed on pro-rata basis in A.Y. 2013-14 being reimbursement of employee salary and related expenses as it is similar to the nature of amount of ₹ 626.416 Crores in the A.Y. 2015-16. . 6. It is pertinent to mention here that assessment records for A.Y. 2013-14 is duly perused and it is found that the issue in question h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h your good-self for the captioned proceedings. In this regard, we further submit as under : . 8 . Details/Nature of Foreign Remittances : During the course of the earlier hearing, your goodself had asked us to provide details of foreign remittances made by the Company. In this regard, we submit that details of the remittance (i.e. purpose of remittances, amounts, etc.) are appearing in the copy of ITS subsequently provided to us. In this regard, as would be noted from the ITS form, the foreign remittances made by the Company during the year, are towards reimbursement of expenses incurred by foreign group companies on the Company s behalf, fees for professional and technical services, foreign tax payments, rent payments, insurance premium, referral commission, etc. In this regard, we are enclosing, as annexure J, sample copies of Form 15CA / 15CB, alongwith relevant invoice copies, which evidence the nature of the remittance. 15. We have also seen the annexures to the said letter which are placed in the petition and those annexures do refer to payment made on account of reimbursement of payroll expenses to subsidiaries incurred outside India and paid to Oracle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosure of material facts by an assessee in an earlier year. Shri Sharma stated that in the Assessment year 2015-16, new material was called for by the Assessing Officer. That still would not help respondents because the Assessing Officer who passed the original assessment order for the assessment year 2013-14 was satisfied with the explanation given to him and perhaps might have even called for the same material and formed an opinion different from what the Assessing Officer has formed for Assessment year 2015-16. In our view, just because an Assessing Officer has asked some extra queries and come to an opinion in later year, different from the opinion which was expressed conclusively by an officer in the earlier year, would not help respondents to take their case out of the restrictions imposed by proviso to section 147 of the Act. 20. In these circumstances, we allow the petition in terms of prayer clause (a), which reads as under : (a) this Hon ble Court may be pleased to issue a Writ of Certiorari or writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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