TaxTMI 
TaxTMI 
2013 (2) TMI 269
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....ncome Tax Act, 1961. 2. The Petitioner filed a return of income on 28 October 2005 for A.Y. 2005-06, claiming that its net business income of Rs.10.44 crores was not taxable in India, in view of Article 7 of the India Singapore DTAA. An intimation was issued to the Petitioner under Section 143(1). On 23 August 2007, the Senior Audit Officer in a communication to the First Respondent stated that the computation of income showed that the Petitioner had short term capital gain of Rs.10.21 crores which was treated as business income and held not to be taxable, under Article 7 of the DTAA. The audit objection noted that the Petitioner is a Foreign Institutional Investor and under Section 115AD, the capital gain was liable to be brought to tax.....
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....t of a Contracting State may be taxed in that State." 7. Therefore, the capital gains earned by the assesee is to be taxed in India as per the provisions of section 115AD of the Income-tax Act, 1961 read with Article 13 of the Double Taxation Avoidance Agreement between India and Singapore. Further, it is also necessary to mention here that all the Foreign Institutional Investors earning the income on sale of shares in India are filing the return of income declaring the income under the head 'capital gains' and paying taxes thereon. Thus, the income earned by the assessee is to be assessed under the head capital gains instead of business income as claimed by the assessee. 8. In this case intimation u/s.143(1) of the I.T.Act, 1961 was issu....
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....at even if the profit arising from the purchase and sale of shares was taken as a capital gain, the resultant capital gain was exempt under Article 13(4) of the DTAA. 6. On 5 February 2008, the Petitioner while responding to the communication dated 7 January 2008, objected to the initiation of the proceedings under Section 148 inter alia on the ground that the return of income was accepted by furnishing an intimation under Section 143(1) and that there was merely a change of opinion on the part of the Assessing Officer. By a letter dated 11 August 2008, the Petitioner requested the Assessing Officer to address the objections raised to the reopening of the assessment by a speaking order. 7. The Assessing Officer passed an order of assessme....
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....ncome Tax (International Taxation)-4(2) stating that in view of the judgment of the Supreme Court in GKN Driveshafts, the objections of the Petitioner to the reopening of the assessment should be disposed of. 9. The submission which is urged on behalf of the Petitioner is that under the judgment of the Supreme Court in GKN Driveshafts, the Assessing Officer is required to record reasons for reopening the assessment which have to be furnished to the assessee; and on receipt of the reasons, the assessee is entitled to file objections which have to be disposed of by the Assessing Officer by a speaking order before he proceeds to make an assessment. In the present case, it was urged, no order was passed by the Assessing Officer disposing of th....
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.... the Assessing Officer had not passed a formal order on the objections of the Petitioner against the reopening of the assessment. As the record would indicate, the Assessing Officer had issued a notice under Section 143(2) to the Petitioner in connection with the assessment proceedings. The order of assessment dated 29 December 2008 records that in pursuance of the notice that was issued under Section 143(2) and Section 143(1), the representative of the Petitioner attended the proceedings before the Assessing Officer, filed details which were on record and that the case was heard and discussed. Even during the pendency of the assessment proceedings, the Petitioner did not move this Court with the grievance that a speaking order disposing of....
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....ch resulted in the order of assessment dated 29 December 2008. In the proceedings, pursuant to the notice under Section 263, the Petitioner urged that it had not been provided enough time to furnish details during the proceedings and it was on this basis that the proceedings were remitted back to the Assessing Officer for fresh consideration. In that view of the matter, following the order under Section 263, the proceedings have been restored to the Assessing Officer to frame a fresh assessment order de novo after affording the Petitioner an opportunity of being heard. There is no merit in the contention of the Petitioner that the Assessing Officer must now first dispose of its objections to the reopening of the assessment before proceedin....