TaxTMI 
TaxTMI 
2007 (5) TMI 202
X X X X Extracts X X X X
X X X X Extracts X X X X
....India and, therefore, being a tax resident of Finland and governed by the provisions of the India-Finland Double Taxation Avoidance Agreement, the income derived by the petitioner from supply of telecommunication equipment to Indian telecom operators qualifies as "business profits" and no portion thereof is taxable in India. Accordingly, in respect of the assessment year 2003-04, the petitioner filed a nil return of income. 2. Unfortunately for the petitioner, the Assessing Officer did not agree with it and, therefore, assessed its income under section 143(3) of the Income-tax Act, 1961 ("the Act") and raised a demand of Rs. 37.47 crores by way of tax and Rs. 14.05 crores by way of interest under section 243B of the Act. The assessment o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment years from 1997-98 to 2003-04 and if that is done, then the petitioner would in fact be entitled to a refund of tax on the basis of the cumulative demands and deposits for the assessment year 1997-98 till the assessment year 2003-04. Therefore, the contention of the petitioner is that if it is asked to deposit Rs. 4.86 crores for the assessment year 2003-04, it will be casting an unnecessary burden on the petitioner and would mean that the Revenue is not looking at the entire picture for all these assessment years cumulatively, but for one assessment year at a time which, according to the petitioner, it should not do. 6. It appears that the Revenue has challenged the order dated June 22, 2005, passed by the Special Bench of the Trib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1997-98 and 1998-99. Consequently, the petitioner moved an application for modification of the order dated June 3, 2005. By an order dated July 29, 2005, the Tribunal noted that the petitioner seems to have paid excess tax of about Rs. 16.90 crores (if the order of the Special Bench is implemented) and that the petitioner had also paid Rs. 50 lakhs in terms of the order dated June 3, 2005, and so, relying on the decision of the Special Bench, the Tribunal modified its earlier order dated June 3, 2005, and relieved the petitioner of its requirement to pay the balance amount of Rs. 1 crore in terms of the order dated June 3, 2005. In other words, against a liability of Rs. 15.74 crores, the Tribunal was satisfied with the petitioner' s de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....general proposition that the petitioner would be entitled to a refund (if an adjustment is made across the board on the basis of the decision of the Special Bench) was not adverted to by the Revenue, although it was submitted that the order passed by the Special Bench was not final in the sense that an appeal had been filed under section 260A of the Act in this court. It was further submitted by learned counsel for the Revenue that as things stand today, there is factually no refund due to the petitioner. 11. We may mention by way of completion of facts that for the assessment year 2002-03 (the only other remaining assessment year), an appeal filed by the petitioner is pending before the Commissioner of Income-tax (Appeals). The petition....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the administration of justice . . . " 16. It was further observed in Bhopal Sugar Industries Ltd. v. ITO [1960] 40 ITR 618 (SC) (page 623) : "The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that, in the circumstances of this case, it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier, such a view is destructive of one of the basic principles of administration of justice." 17. Similarly, in Triveni Chemicals Ltd. v. UOI [2007] 2 SCC 503, the Supreme Court reiterated the principle that adjudicating authorities are bound by the doctrine of judicial discipline. 18. Following the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....This is, of course, one possible way of looking at the issue. However, it has to be remembered that the State is bound to be fair to those with whom it has to deal with, and to the extent possible, it must avoid any harassment to the assessee public without causing any loss to the exchequer. Therefore, if one looks at the matter in a broader perspective (and there is no reason why we should not), then it would be necessary to take into account the tax liability of the petitioner for the entire period in respect of which the dispute is still alive, that is to say from the assessment year 1997-98 till the assessment year 2003-04. If this is done and an across the board review is taken of the tax liability of the petitioner as well as the amou....