Reopening after section 143(1) intimation and treaty taxability of non-resident service payments under DTAA

An intimation under section 143(1)(a) is not an assessment, so the absence of a notice under section 143(2) within time did not bar reopening under section 147 read with Explanation 2(b). The article also explains that payments to non-residents were not chargeable to tax in India where the services were advisory, assessment, surveillance, liaison, and audit related, and did not involve making available technical knowledge or skill. The payments were treated as neither royalty nor fees for technical services, and no permanent establishment or treaty-based taxing right was shown. Accordingly, no tax deduction obligation arose and disallowance under section 40(a)(i) was not sustainable.

---

---

Issues: (i) Whether reassessment was valid when only an intimation under section 143(1)(a) had been issued and no notice under section 143(2) was issued within the prescribed time; (ii) Whether payments made to non-resident recipients were chargeable to tax in India under the Indo-UK DTAA so as to attract disallowance under section 40(a)(i) for failure to deduct tax at source.

Issue (i): Whether reassessment was valid when only an intimation under section 143(1)(a) had been issued and no notice under section 143(2) was issued within the prescribed time.

Analysis: An intimation under section 143(1)(a) does not amount to an assessment. Therefore, the absence of a notice under section 143(2) within the stated period did not create a completed assessment immune from reopening. The reassessment case fell within the scope of section 147, read with Explanation 2(b).

Conclusion: The reopening was valid and this objection was rejected.

Issue (ii): Whether payments made to non-resident recipients were chargeable to tax in India under the Indo-UK DTAA so as to attract disallowance under section 40(a)(i) for failure to deduct tax at source.

Analysis: The services rendered by the foreign entities were found to be advisory, assessment, surveillance, liaison, and audit related services. They did not constitute royalty or fees for technical services because they did not involve making available technical knowledge, experience, skill, know-how, or processes to the assessee. The payment to Mr. Price was treated as consideration for professional services, and in the absence of residence in India for the requisite period or a fixed base, article 15 did not permit taxation in India. The business profits of the non-residents were also not taxable in India because no permanent establishment in India was shown under article 7. Since the sums were not chargeable to tax in India, no obligation to deduct tax at source arose.

Conclusion: The amounts were not taxable in India and disallowance under section 40(a)(i) was not sustainable.

Final Conclusion: The assessee succeeded on the substantive disallowance issue, and the reassessment challenge also failed; the appeals were allowed overall.

Ratio Decidendi: An intimation under section 143(1)(a) is not an assessment for barring reopening under section 147, and payments to non-residents are not deductible under section 40(a)(i) unless they are chargeable to tax in India under the applicable treaty or the Act.

---