2016 (8) TMI 769

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....e Assessment Year 2011-12, the petitioner filed a return of income on 28.9.2011 declaring total loss of Rs. 2.11 crores. The revised return was filed on 9.2.2012 making minor adjustment of the loss. Such return was taken in scrutiny. During which process the Assessing Officer raised various queries and finally passed an order of assessment on 31.12.2013. To reopen such assessment, impugned notice came to be issued. For such purpose, the Assessing Officer had recorded following reasons: "The assessee company is engaged in the business of manufacturing packing and processing of fresh products and production o juice conservatives. The return of income was filed on 9.2.2012 declaring loss of Rs. 2,08,82,411/-, thereafter assessment was compl....

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....nt. According to the Assessing Officer, TDS was required to be deducted under Section 195 of the Income-Tax Act,1961 (for short 'the Act'). Failure to do so would attract the provisions of Section 40(a) (i) of the Act. 4. We, however, notice that in the assessment proceedings, the Assessing Officer having raised certain queries, the petitioner under a letter dated 17.10.2013 provided the following details : "16. We have deducted the TDS on all the payments where TDS is deductible under chapter XVII-B of the Income-Tax Act,1961. The details of the TDS deducted and deposited to the Government account are mentioned in Anneuxre-O. 38. Details of Foreign selling expenses are provided in prescribed format as Annexure-AG. Foreign selling ....

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....dia hence we are not liable to deduct TDS on the same. Complete details of the Foreign Selling Expenses are enclosed herewith." 6. Thus, under the letter dated 17.10.2013, the petitioner had supplied the details of tax deductible at source and also the details of foreign selling expenses justifying such expenditure. It is possible to construe that since the petitioner had contended that no tax was deductible at source on such foreign expenses, same would not find place at Annexure-O referred to in Para.16 of the reply. It may also be possible to construe that in Para.38 of the same reply, the focus was on justifying the expenditure and not on whether the requirement of the TDS would apply or not. However, the further reply dated 24.12.20....