9911796707
TMI Blog2023 (10) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... returns whatsoever under Section 194E or section 195 of the Act. In fact, there is no reason for the assessee to file any TDS returns in India as it has not remitted any amount out of India to any other party. On the contrary, the assessment order itself would reveal, instead of making any payment, assessee had receipts from Taj Cricket Ltd., another non-resident entity. Thus, the reasons recorded by the Assessing Officer for reopening of assessment under Section 147 of the Act clearly reveals that the formation of belief has no live link or nexus with any tangible material available on record. Rather the reasons recorded are based on either non-existent or completely irrelevant facts. In fact, while disposing of the objections of the assessee questioning the validity of the reopening of the assessment, the Assessing Officer has clearly admitted/owned up various factual inaccuracies in the recorded reasons. Reasons recorded by the Assessing Officer certainly do not make out a case for reopening of assessment under Section 147 of the Act. Also without examining the facts on record, both the Additional CIT and CIT have granted approval under Section 151. Granting approval un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer in the assessment order, as per AIR information available in AIMS module of ITBA, it was found that the assessee had entered into certain transactions resulting in generation of income in India. Whereas, assessee had not filed any return of income in India offering such income. Based on such information, the Assessing Officer reopened the assessment under Section 147 of the Act after recording reasons. In response to notice issued under Section 148 of the Act, assessee filed its return of income and objected to the reopening of assessment under Section 147 of the Act. The case of the assessee was, during the year under consideration, it had entered into an agreement with TAJ Television Ltd., another non-resident entity, in respect of certain rights pertaining to live transmission of certain matches played in South Africa as well as transmission of recorded programs. It was submitted by the assessee that the license fee received from TAJ Television Ltd. is not taxable in India as neither the assessee nor TAJ Television Ltd. are Indian residents. Assessing Officer, however, was not convinced with the submissions of the assessee. He was of the view that the license fee received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the approval granted by the competent authorities under Section 151 of the Act, learned counsel submitted, while granting approval also, neither the Additional CIT nor the CIT have applied their mind to the facts and material on record and have granted approval in a thoroughly mechanical manner. Thus, he submitted, the assessment having been reopened under total factual misconception and without any tangible material on record to establish that income chargeable to tax has escaped assessment, assumption of jurisdiction under Section 147 of the Act is wholly invalid. Thus, he submitted, the assessment order is invalid. He submitted, without properly examining the issue, the DRP has rejected assessee s contention in a purely perfunctory manner. Thus, he submitted, the assessment order deserves to be quashed. 7. Learned Departmental Representative relied upon the observations of learned DRP. 8. We have considered rival submissions and perused material on record. 9. It is a well-settled principle of law that the foundation of assumption of jurisdiction under Section 147 of the Act is the reasons recorded by the Assessing Officer to form the belief that income chargeable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh, the Assessing Officer has reopened the assessment for assessment year 2013-14, however, the heading of the reasons recorded refers to assessment year 2014-15. Even, the name of the assessee has been wrongly mentioned. In paragraph 3 of the reasons recorded, the Assessing Officer has very clearly and categorically stated that, though, the assessee had filed TDS return under Section 194E of Rs. 4,68,56,484 and under Section 195 of Rs. 1,07,16,433, however, it didn t file any return of income. As a result of which, genuineness of financial transaction business activities of the assessee could not be ascertained. In paragraph 4 of the reasons recorded, the Assessing Officer has mentioned filing of return of income by M/s. Cricket Australia. Whereas, admitted facts are, the assessee has not filed any TDS returns whatsoever under Section 194E or section 195 of the Act. In fact, there is no reason for the assessee to file any TDS returns in India as it has not remitted any amount out of India to any other party. 11. On the contrary, the assessment order itself would reveal, instead of making any payment, assessee had receipts from Taj Cricket Ltd., another non-resident entity. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 of the Act. Therefore, the burden casts on the approving authority is onerous, as, based on the reasons recorded by the Assessing Officer for reopening of assessment, approving authority has to find out whether a case for reopening of assessment is made out. 13. In the facts of the present appeal, undoubtedly, the reasons recorded by the Assessing Officer certainly do not make out a case for reopening of assessment under Section 147 of the Act. However, without examining the facts on record, both the Additional CIT and CIT have granted approval under Section 151 of the Act. Granting approval under Section 151 of the Act is not an empty formality. Approval has to be granted with caution and proper application of mind to the facts and material on record to prevent miscarriage of justice, as, reopening of assessment involves reopening of an already concluded assessment. Therefore, it should not be used as a tool for harassment to the assessee. Unless there is concrete evidence and tangible material before the Assessing Officer indicating escapement of income, powers under Section 147 of the Act should not be exercised. However, this is not the case in the present appeal. Not o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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