The Department appears to have sent a proposal to the Finance Department which had approved it on 4th September 2012 and after the same was received back alongwith necessary papers and orders permitting the Office of the Government Pleader to file Tax Appeal, it appears that the Tax Appeal which was to be filed on or before 10th November 2009, came to be filed after a huge delay of 1226 days on 27th November 2012. What is stated for explaining such delay is that due to Government administrative mechanism, within the statutory time period, tax appeal could not be filed. In absence of any specific details and explanation, this explanation in general terms does not satisfy us.
As it appears from the portion highlighted by us, the question involved in that matter regarding the validity of the State Laws included in the Ninth Schedule cannot have any application to the facts of the present case. Regarding constituent power under Article 368, we have already relied upon the observations of the nine-bench-judgment of the Supreme Court in the case of I.R. Coelho [dead] by L.Rs. v. State of T.N. (supra) holding that by addition of the words ‘constituent power’ in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. We, thus, find that the above decision relied upon by Mr. Champaneri does not help his client in any way.
In case of Ashok Taksali (supra), the Rajasthan High Court came across a similar question. The Bench was of the opinion that once a salary income of the block year has been taxed and such tax has been deducted at source, there is no question of holding that the income of the assessee was undisclosed income of the block period. It was observed as under:-
Firstly, the petitioners had lodged their refund claims at the relevant time itself way back in the year 1991 when the question of classification was decided in their favour by the Commissioner. Secondly, the Department did not release the refund for a considerable period of time since such order of the Commissioner (Appeals) was challenged before the Tribunal. Thirdly, the Commissioner (Appeals) disposed of the petitioners’ case on 11-10-2002 with respect to the refund and not with respect to the original claim of classification.
Considering all the facts and circumstances and taking into account all the contentions raised by the affidavits and reply affidavits, considering the decisions of other High Courts, Supreme Court and the Division Bench of this High Court on the issues raised by the Regional Director and the submissions during the course of hearing, I am satisfied that the observations made by the Regional Director, Ministry of Corporate Affairs, do not survive. I have come to the conclusion that the present scheme of arrangement is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned.
From the material documents allowed to be produced, the assessee could satisfy the Commissioner (Appeals) that the place of effective management of its enterprises was situated at Netherlands and thus, the requirement of condition in Article 8A of DTA agreement was met with. The Tribunal has rightly confirmed the decision of the Appellate Commissioner holding the assessee to be eligible for benefits of DTAA.
As is more than apparent, assessment was completed on scrutiny. In post assessment period, audit party raised the objection and Assessing Officer had strongly objected to such objections by communicating internally as mentioned hereinabove. In such background, reasons for reopening if are noted, they are almost identically worded as that of audit report. No material worth the name emerges to indicate any independent application of mind. Facts are quite glaring on the contrary & they clearly establish absence of subjective satisfaction of Assessing Officer. Thus, the ground raised by the petitioner that such notice of reopening is invalid for the Assessing Officer having not formed his independent belief requires to be sustained.
In this case Assessing Officer proposed to reopen the assessment beyond a period of four years from the end of relevant assessment year, while there was full and true disclosure on part of the petitioner during original assessment. With respect to the first issue of discount/commission, the Assessing Officer called for the details of such payments in excess of Rs. 50 lakhs. Such details were promptly provided. No further questions arose from the Assessing Officer in this regard. Like-wise, during the assessment, the Assessing Officer also called upon the petitioner to supply full details of the roaming charges paid to various telecom operators. Such details were also made available.
In brief, the issue is whether the time limits specified in Section 115VP(2) of the Income Tax Act, 1961 is mandatory? Briefly stated facts are that Section 115VP was introduced for regulating method and time of opting for tonnage tax scheme. Such provision was in relation to Chapter XII-G pertaining to special provisions relating to income of shipping companies. Clause (m) of Section 115V defines “tonnage tax scheme” as to scheme for computation of profits and gains of business of operating qualifying ships under the provisions of that Chapter.
Assessing Officer having examined the nature of receipts and the corresponding expenditure in the original assessment, now cannot be permitted to change his view with respect to the nature of treatment such receipts must receive.
