2014 (7) TMI 40 - HC - Income Tax

Court Orders Tax Reassessment for Davy, Emphasizes Compliance with High Court Decision

The Court directed the tax authority to re-assess Davy's income, excluding the disputed amount, and ordered the Respondents to deposit any refundable sum ... Computation of income received from technical services – Grant of refund declined - Held that:- When the Court in its order dated 5 May 2010 specifically directed the revenue to pass fresh assessment orders excluding the income received by Davy for providing technical services to Petitioner pursuant to BEAT agreement, the revenue is duty bound to comply with the direction - There appears to be substance in the grievance made by the assessee that notice was sent to the address of Chartered Accountant of Davy which has been closed down - the notice on Davy would never be served - the assessee has made out a case for grant of interim relief – thus, the ITO is directed to pass a fresh order for the A.Ys. 1990-91 and 1991-92 after excluding the income received by Davy as fees for providing technical services – Decided in favour of Assessee. Issues:Challenge to order of Assistant Commissioner of Income Tax on refund claim following High Court judgment in Writ Petition No.448 of 1994.Analysis:The petitioner challenged the Assistant Commissioner of Income Tax's order declining the refund claim after a High Court judgment in Writ Petition No.448 of 1994. The petitioner entered a Foreign Technical Collaboration for a Sponge Iron Plant with Davy Mckee Corporation. Disputes arose regarding tax deductions on payments to Davy, leading to assessments and appeals. The High Court, in its 2010 judgment, ruled that the income was not liable to Indian Income Tax, setting aside the assessment orders. Despite this, the Assistant Commissioner refused the refund, citing Davy's claim for tax credit. The petitioner argued for the refund based on the High Court's decision and contractual provisions for tax refunds. The Revenue contended that the tax was deducted on Davy's behalf and only Davy could claim the credit. Circulars and legal provisions were invoked by both sides to support their arguments.The petitioner sought the refund of withholding tax paid under protest, emphasizing the contractual clause for tax refunds and principles outlined in relevant Circulars. The Revenue opposed the refund, asserting that the tax was deducted on Davy's behalf and only Davy could claim the credit. The Court noted discrepancies in the notice sent to Davy and directed the tax authority to issue fresh assessment orders for Davy, excluding the disputed income. The Court refrained from deciding on the refund's entitlement at this stage but ordered the Respondents to deposit any refundable amount with interest by a specified date.In conclusion, the Court directed the tax authority to re-assess Davy's income, excluding the disputed amount, and ordered the Respondents to deposit any refundable sum with interest. The judgment focused on ensuring compliance with the High Court's decision and addressing discrepancies in the tax authority's actions, without conclusively deciding on the refund entitlement at that stage.