Reassessment limitation excludes taxpayer response time, while unchanged facts may preclude dependent-agent permanent establishment and Indian profit attribution.
Reassessment limitation excludes the period allowed for replying to a notice seeking explanation, including any extension. After that exclusion and the statutory extended period are applied, an order and notice issued within three years require approval from the Commissioner as the specified authority. Separately, an Indian associated enterprise does not create a dependent-agent permanent establishment where the identical business model and facts previously established no such presence. Business profits therefore cannot be attributed to India on a dependent-agent permanent-establishment basis.
Issues: (i) Whether the approval for the order under section 148A(d) and notice under section 148 was obtained from the correct specified authority under section 151(i) of the Income-tax Act, 1961; (ii) Whether the Indian associated enterprise constituted a Dependent Agent Permanent Establishment under Article 5(5) of the India-Switzerland Double Taxation Avoidance Agreement.
Issue (i): Whether the approval for the order under section 148A(d) and notice under section 148 was obtained from the correct specified authority under section 151(i) of the Income-tax Act, 1961.
Analysis: The show-cause notice under section 148A(b) was issued before expiry of three years from the end of the relevant assessment year. The period allowed to furnish a reply, including the extended period up to 22.04.2022, was excludable under the third proviso to section 149(1). Following the fourth proviso, the order under section 148A(d) and notice under section 148 issued on 29.04.2022 fell within the extended seven-day period. The reassessment was consequently within three years, and the jurisdictional approval of the Commissioner of Income-tax was from the specified authority under section 151(i).
Conclusion: The approval was validly obtained from the correct specified authority; the jurisdictional challenge fails against the assessee.
Issue (ii): Whether the Indian associated enterprise constituted a Dependent Agent Permanent Establishment under Article 5(5) of the India-Switzerland Double Taxation Avoidance Agreement.
Analysis: The business model and material facts were identical to those in the immediately relevant assessment year, in which it had already been determined that no Dependent Agent Permanent Establishment existed in India. That determination applied mutatis mutandis to the relevant year.
Conclusion: The Indian associated enterprise did not constitute a Dependent Agent Permanent Establishment; this issue is decided in favour of the assessee.
Final Conclusion: Although the reassessment was jurisdictionally valid, no Indian dependent-agent permanent establishment was established, and business profits could not be attributed to India on that basis.
Ratio Decidendi: In computing the limitation for reassessment, the time allowed to an assessee to respond to a notice under section 148A(b) must be excluded, and the specified authority for approval is determined after giving effect to that statutory exclusion and extension.