TaxTMI 
TaxTMI 
TaxTMI 
2025 (3) TMI 99
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....4-15 31 March 2021 1738 of 2022 2016-17 30 March 2021 1743 of 2022 2015-16 31 March 2021 1750 of 2022 2017-18 30 March 2021 2. The reassessment action was commenced prior to the introduction of the new statutory scheme which came to hold the field post the promulgation of Finance Act, 2021. In view of the above, while the notice under Section 148 came to be issued on 17 March 2021, the reasons in support of the formation of the requisite opinion came to be provided to the petitioner later. For purposes of brevity, we propose to notice the reasons as recorded for invocation of Section 148 with respect to AY 2013-14. 3. The Assessing Officer [AO] as per the reasons provided to the writ petitioner had taken note of the fact that the assessee was a company incorporated and registered under the laws of Switzerland and a non-resident in the concerned financial year. It noted that it was engaged in the business of supplying equipments and spares to Indian entities. The petitioner is stated to have not filed any returns of income for AY 2013- 14. It was thus alleged that although the petitioner was deriving profits from the supply of equipment and spares to Indian companies an....
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....e Assessee from its customers in India is held to be attributable to its PE in India." It was on the aforesaid basis that the AO formed the opinion that income liable to tax for AY 2013-14 had clearly escaped assessment. 6. Similar reasons are assigned in support of the proposed re-opening for the other AYs which form the subject matter of the present challenge. Before us, learned counsels for parties were ad idem that the challenge as raised would be covered by the judgment that we had rendered in Grid Solutions OY (Ltd.) v Assistant Commissioner of Income Tax International Taxation and Another 2025 SCC OnLine Del 183. 7. In Grid OY, we had an occasion to deal with an identical challenge to reassessment which too was based on the survey conducted on 06-07 June 2019. Answering the issues that stood raised in that batch and where too the reassessment was based entirely on what was found in the course of that survey, we had observed and held as follows:- "17. Contrary to the above, it had been the consistent stand of the present writ petitioners that no PE had existed in the years in question. It is in the aforesaid light that we would have to evaluate and examine whether the fi....
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....her there is a suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the Court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumptions of facts made in the notice were erroneous. The assessee may also prove that no new facts came to the knowledge of the Income Tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be no order as to costs." 18. Indisputably, there is no principle akin to that of res judicata which can be recognized to be applicable to taxing disputes. Though this principle is well settled, we deem it appropriate to refer to the following enunciation of the well-se....
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....details regarding the scope and nature of the aforenoted contracts. The Revenue contends that for the R-series contracts, the petitioner has made contradictory statement regarding commissioning period and period of as-built documentation etc. The petitioner, in its submission dated June 22, 2019, contends that commissioning work is not undertaken by them for the R-series contracts, and the same is to be performed by the Oil and Natural Gas Corporation. Without going into the question as to whether the petitioner's stand is contradictory, we may note that the Assessing Officer while exercising its power under section 197, during the course of the enquiry, cannot undertake an exhaustive exercise to determine this issue conclusively. We find force in the submissions of Mr. Raghvendra Kumar Singh that the question as to whether the petitioner has constituted a permanent establishment, cannot possibly be undertaken in the enquiry having regard to the time frame permissible under law for deciding the application under section 197 of the Act. The reasons shown to us also take note of the fact that in the immediate preceding years, i.e., the assessment year 2016-17 and the assessment y....
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....so led considerable emphasis on the decision of this court dated May 9, 2017, wherein this court directed the respondents to issue certificate under section 197 of the Act, accepting the alternative plea of the petitioner that the Oil and Natural Gas Corporation would deduct tax at 4 per cent. plus surcharge plus education cess on the revenues in respect of only the inside India activities of the petitioner. 26. We are, however, not impressed with the aforesaid contention and do not find the judgment of the Supreme Court in Radhasoami Satsang (supra) to be applicable in the present case. In the said case, the issue arose whether the assessee is a charitable trust, and this position had not been contested by the Income-tax Department from the assessment year 1937-38 to the assessment year 1963-64. In these circumstances, the court held as under (headnote of 193 ITR 321 ): "Where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year." 27. In ....
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....should be followed and not ignored unless there are good and sufficient reasons to take a different view. Thus, it was/is possible for the Assessing Officer to depart from the finding or a decision in one year as it is final and conclusive only in relation to a particular year for which it is made but as observed in Radhasoami Satsang v. CIT (1992) 193 ITR 321 (SC), when a fundamental aspect pervading through different assessment years has been found as a fact in one way or the other, it would inappropriate to allow the position to be changed in a subsequent year particularly when the said finding has been accepted. The said principle is also based upon the rules of certainty and consistency that a decision taken after due application of mind should be followed consistently as this lead to certainty, unless there are valid and good reasons for deviating and not accepting the earlier decision." 21. The Court also takes note of the succinct enunciation of this legal principle in Dwarkadas Kesardeo Morarka v Commissioner of Income Tax, Central 1961 SCC OnLine CS 221 where the Supreme Court had held as under:- "7. The conclusion of the Tribunal was amply supported by evidence. It c....
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....penses on account of renovation of the said business premises. On the basis of these facts, the Assessing Officer noted that he was satisfied that investments made in the renovation work had escaped assessment. Here too, we note that the survey was conducted on March 7, 2002, which falls in the year subsequent to the three years in question in these appeals. The fact that the renovation expenses had not been booked in that year, i.e., financial year ending on March 31, 2002, does not by itself indicate that the renovation work had been carried on in the earlier three years and, if so, the expenses in respect of the same had not been booked. The conclusion of the Assessing Officer, based on what was noticed in the course of the survey, cannot be extrapolated to other years. The purported belief of the Assessing Officer, on this aspect of the matter, was not a belief at all but was merely a suspicion. Such suspicion cannot take the place of a belief and that too a belief which is based on reasons." 24. While and as our Court explained in Galileo it may be permissible for an AO to take cognizance of a "fundamental aspect pervading through different assessment years has been found ....