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Re-assessment proceedings lack jurisdiction if commenced after 4-year limitation period & without any failure of assessee to make full & true disclosure of material facts: ITAT

2019-TIOL-1432-ITAT-MUM

IN THE INCOME TAX APPELLATE TRIBUNAL
BENCH ‘C’ MUMBAI

ITA No.2737/Mum/2018
Assessment Year: 2007-08

DEPUTY COMMISSIONER OF INCOME TAX
CIRCLE 6(3)(1) R.NO. 506, 5TH FLOOR
AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-20

Vs

IMPERIAL PROCUREMENT SERVICES PVT LTD
FORMERLY KNOWN AS ESSAR PROJECTS LTD
ESSAR HOUSE, 11, K K MARG, MAHALAXMI, MUMBAI-400034
PAN NO:AAACE0892R

Mahavir Singh, JM & Rajesh Kumar, AM

Date of Hearing: June 20, 2019
Date of Decision: June 20, 2019

Appellant Rep by: Jacinta Zimik Vishai, DR
Respondent Rep by: 
Mr Anuj Kisnadwala, AR

Income Tax – Sections 115JB, 147 & 148.

Keywords – Reopening of assessment – income from contracts – percentage completion method – TDS income.

The assessee engaged in the business of execution of construction contracts and trading in securities, filed its return of income for the relevant AY. The original assessment was completed u/s 143(3) of the Act wherein income was assessed under the normal provision at Rs. 10,36,40,270/-. The assessment under MAT provisions was made and assessed booked profit at Rs. 15,07,42,194/- u/s 115JB of the Act. Subsequently, the AO issued notice under section 148 of the Act and reopened the assessment. The AO completed the assessment and made addition towards income from contracts as per percentage completion method at Rs. 127,35,00,000/- and also made addition of Rs. 16,99,30,275/- towards corresponding TDS income. The assessee before CIT(A) challenged the validity of reopening of assessment and contended that the assessment having completed originally under section 143(3) of the Act and reopening after the lapse of four years from the end of the relevant assessment year and further there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the relevant assessment year. The CIT(A) passed order in favour of assessee.

On appeal, Tribunal held that,

Whether if assessment is reopened beyond four years from the end of relevant AY and income has not escaped assessment by reason of assessee’s failure to make a full and true disclosure of material facts then action u/s 147 is without jurisdiction – YES: ITAT

++ it was noted from the facts on record that there was no failure on the part of the assessee to disclose fully and truly the material facts necessary for completion of assessment as alleged in the reasons extracted above. In fact, the assessee had duly compiled with the directions issued by the AO during the course of original assessment proceedings and on appraisal of the same facts, which is evident from the above reasons recorded by the AO, is outside the scope of the proviso to section 147 of the Act. It was noted that the assessee company was consistently following the contract completion method in prior years as well as in the year under appeal. The above accounting method has been accepted by the Income Tax Department in earlier years, which can be verified from the assessment orders or the appellate orders of the assessee of the earlier years. As per records, the TDS credited of Rs. 8.57 crores pertain to AY 2005-06, 2006-07 and 2008-09, whereas the assessee’s AY is 2007-08 and hence, the same is not relevant for AY 2007-08. It means that the assessee has filed complete details and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the relevant assessment year in respect of both the issues narrated in the reasons recorded. Hence, we are of the view that the assessee’s case squarely filed under the proviso to section147 of the Act and reopening is bad;

++ Supreme Court in the case CIT vs. Framer France, 2003-TIOL-88-SC-IT, has taken the view that the first proviso to section 147 of the Act lays down an exception whereby the AO is not permitted to exercise his jurisdiction in reopening the assessment beyond a period of four years from the end of the relevant assessment year. Once the exception carved out by proviso to s. 147 of the Act comes into play, the case would fall outside the ambit of s. 147 of the Act. As per proviso to s. 147 of the Act, no action under this section can be taken after expiry of four years from the end of the relevant assessment year, unless inter alia, income chargeable to tax had escaped assessment by reason of failure of the assessee to make full and true disclosure of all material facts necessary for assessment. In case, there being no whisper in the reasons supplied to assessee that income escaped assessment by reason of assessee’s failure to make a full and true disclosure of all material facts necessary for assessment, notice under section 148 of the Act issued beyond four years from the end of relevant assessment year was barred by limitation under proviso to s. 147 of the Act, hence without jurisdiction. If either of these conditions is not fulfilled the notice is without jurisdiction. If the notice issued u/s 148 fails to satisfy either of the conditions, it deserves to be quashed. However, the officers have many time issued notices for reopening the assessments even beyond four years from the end of the assessment year without fulfillment of any of the legal conditions as stipulated in the first proviso to this section. Such an action of the revenue authorities is strictly challenged by the taxpayers at large in the court of law and courts have quashed the notice issued by Revenue authorities or quashed the re-assessment orders. In view of the above facts of the present case and the judgment of Supreme Court in the case of Foramer France, it was decided to confirm the order of CIT(A) quashing the re-assessment proceedings and dismiss this issue of Revenue’s appeal.

Revenue’s appeal dismissed

Case followed :

CIT vs. Framer France, 2003-TIOL-88-SC-IT

ORDER

Per: Mahavir Singh:

This appeal filed by the Revenue is arising out of the order of the Commissioner of Income Tax (Appeals)]-12, in short CIT(A), in appeal No. CIT(A)-12/ITO-6(3)(1)/A1-18/15-16 vide dated 28.02.2018. The Assessment was framed by the Dy. Commissioner of Income Tax, Central Circle 5(1)(2), Mumbai (in short DCIT/ITO/ AO) for the A.Y. 2007-08 vide order dated 30.03.2015, under section 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’).

2. The first issue in this appeal of Revenue is against the order of CIT(A) in holding the notice issued for reopening of assessment under section 147 read with section 148 of the Act as invalid. For this Revenue has raised the following ground No. 1: –

“On the facts and circumstances of the case and in law, whether the Ld. CIT(A) was justified in treating the issue of notice under section 148 as illegal and invalid without going through the facts and circumstances of the findings?”

3. Briefly sated facts are that the assessee is engaged in the business of execution of construction contracts and trading in securities. The assessee filed its return of income for the relevant AY 2007-08 on 31.10.2007. Subsequently, the assessee revised its return of income on 31.03.2009. The original assessment was completed by the AO under section 143(3) of the Act vide order dated 29.12.2009, wherein income was assessed under the normal provision at Rs. 10,36,40,270/-. The assessment under MAT provisions was made and assessed booked profit at Rs. 15,07,42,194/- under section 115JB of the Act. Subsequently, the AO issued notice under section 148 of the Act dated 18.03.2014 and reopened the assessment under section 147 read with section 148 of the Act. The AO completed the assessment under section 143(3) read with section 147 of the Act vide order dated 30.03.2015 and assessed the total income under the normal provisions at Rs. 154,70,70,545/-. The AO made addition in the reopened assessment towards income from contracts as per percentage completion method at Rs. 127,35,00,000/- and also made addition of Rs. 16,99,30,275/- towards corresponding TDS income. The assessee before CIT(A) challenged the validity of reopening of assessment under section 147 read with section 148 of the Act contending that the assessment having completed originally under section 143(3) of the Act and reopening after the lapse of four years from the end of the relevant assessment year and further there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the relevant assessment year. The assessee before CIT(A) gone through the reasons recorded. The reasons recorded are reproduced in the assessment order as it is and the following are the reasons: –

“On perusal of records of the assessee company for the assessment year 2007-08 the under mentioned points have been emerged out.

(i) On examination of assessment records it has been seen that in the case of MIs Essar Project Ltd the accounts were maintained on contract completion basis. However, the assessee being a contractor should have maintained accounts on percentage completion method. The contract completion method is an incorrect method of accounting which had resulted in deferment of estimated revenue of 389.55 Cr and tax of 131.12 cr. (ii) In the case of assessee for the A. Ys 2005-06, 2006-07 & 2008-09 it has been observed that the assessee had claimed TDS credit of Rs 8.57 Cr on progressive payments and mobilization amounts received aggregating to Rs 576 Cr during the above mentioned years. Since the assessee was following project completion method and no income was offered during these years allowing TDS credit for these years without offering corresponding income was incorrect.

2. The above said income chargeable to tax has escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all the material facts necessary at the time of assessment. in view the above, I have reasons to believe that amounts of Rs. 46.87 crore have escaped assessment within the meaning of section 147 and needs to be brought to the tax net.”

4. The CIT(A) after going through the submissions of the assessee and the above reasons, quashed the reopening of assessment by observing in para 10 to 13, 16 to 19 as under:-

“10. I have carefully considered the facts of the case, the reassessment order and the written submission of the appellant. The appellant is engaged in the business of undertaking project construction on Engineering, Procurement and Construction basis in various fields including Civil, Mechanical, Marine and Pipeline Projects for various third parties. The appellant has followed the completed contract method for recognising the revenue from the contracts executed by it during the year. In the P & L account, no contract receipts have been credited during the year. The original assessment u/s. 143(3) of the Act was completed on 29.12.2009. In the assessment order, the recognition of revenue from contracts as per the completed contract method followed by the appellant has not been disturbed by the AO.

11. Subsequently, the assessment was reopened u/s. 147 of the Act on account of two reasons to believe that income chargeable to tax has escaped assessment. One of the reasons recorded by the AO is that it was noticed by him on examination of the assessment record of the appellant that it had maintained its accounts on contract completion basis though it should have maintained its accounts on percentage completion method, being a contractor. It was further stated that the contract completion method in an incorrect method of accounting which resulted in deferment of estimated revenue of Rs.389.55 Crores and tax of Rs.131.12 Crores. The second reason recorded by the AO is that it has been observed from the assessment records of the appellant for assessment years 2005-06, 2006-07 & 2008-09 that the assessee claimed TDS credit of Rs.8.57 Crores on the progressive payments and mobilization amounts received by it aggregating to Rs.576 Crores during the said years and since the assessee did not offer any income to tax during the said years by following the project completion method and, the TDS credit allowed for the said years is incorrect.

12. It Is therefore seen from the reasons recorded by the AO for reopening of the assessment that the AO formed his belief regarding the income escaping assessment on the basis of the reasons gathered from the assessment record of the appellant for the present assessment year in respect of the issue of income escaping assessment on account of incorrect method of accounting and from the records of the appellant for A.Ys. 2005-06, 2006-07 and 2008-09 in respect of the issue of allowing TOS credit in the absence of admission of corresponding income.

13. Though it has not been explicitly stated in the reasons recorded for reopening as to why the AO considered that the completion of contract method followed by the appellant is an incorrect method of accounting, the same was subsequently discussed in the reassessment order. The Institute of Chartered Accountants of India (ICAT) issued a revised Accounting Standard AS-7 applicable to “Construction contracts” in the year 2002, which has been made applicable mandatorily in respect of all contracts entered into on or after 01.04.2003. As per the raised AS-7, contract revenue and contract costs associated with a construction contract should be recognised as revenue and expenses respectively by reference to the stage of completion of the contract activity at the reporting date, when the outcome of a construction contract can be estimated reliably. Thus, it is mandatory to follow percentage completion method of accounting in respect of construction contracts entered into on or after 01.04.2003 as per the revised AS-7. However, as the appellant followed the completion of contract method for recognising the contract revenue and expenses during the previous year 2006-07 which is subsequent to 01.04.2003, the AO appears to have concluded that the appellant followed incorrect method of accounting for the present assessment year which resulted in income escaping assessment.

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16. On perusal of the information furnished by the appellant to the AO during the original assessment proceedings, it is seen that copies of the audited balance sheet and P & L account along with all the Schedules thereto were furnished to the AO vide letter dated 18.11.2009. It is seen that Schedule-23 to the financial statements contained information regarding significant accounting policies and notes forming part of the accounts. On perusal of the same, it is seen that the method of accounting followed by the appellant in respect of the construction contracts was stated as under in Clause (x) of the “Significant accounting policies” in Schedule-23:

In respect of contracts entered into prior to 31.03.2003, the company continues to maintain its accounts on “Completed contract” basis i.e. income of a project is acknowledged in the profit & loss account in the year in which the project is completed/substantially completed and final amount due from the client is determined. The accumulated costs of the running project are shown as work-in-progress. In respect of contracts entered into on or after 01.04.2003, the company follows percentage completion method.

17. It is therefore noticed that the method of accounting followed by the appellant in respect of the construction contracts executed by it has been disclosed in the schedule to the financial statements which was furnished to the AO during the original assessment proceedings. As mentioned therein, the appellant followed the completed contract method in respect of contracts entered into prior to 31.03.2003 and the percentage of completion method for the contracts entered into on or after 01.04.2003. This is in accordance with the prescription contained in the revised AS-7, as per which it is mandatory to follow percentage completion method of accounting in respect of construction contracts entered into on or after 01.04.2003. Moreover, it is seen from the copies of the assessment orders passed u/s.143(3) in the case of the appellant for assessment years 2002-03, 2003-04 & 2005-06 that the fact that the appellant was following completed contract method of accounting for the projects undertaken by it was mentioned by the AO in the body of the assessment order. It is therefore clearly evident that the fact regarding the method of accounting followed by the appellant in respect of the construction contracts has been duly disclosed by the appellant and the same was in the knowledge of the AO. This is further corroborated by the fact that the observation made by the AO in the reasons recorded for the reopening that the appellant maintained its accounts on the basis of contract completion method was on the basis of perusal of the assessment record of the appellant itself as specifically noted by the AO in the said reasons for reopening.

18. In the light of the above, it is seen that the fact, on the basis of which the AO arrived at the reason to believe that income has escaped assessment in relation to the incorrect method of accounting followed by the appellant, was duly disclosed by the appellant during the original assessment proceedings. Similarly, the fact regarding the claim of TDS credit by the appellant in assessment years 2005-06, 2006-07 & 2008-09 though no income was offered to tax during the said assessment years on account of following completed contract method was evident from the returns of income filed by the appellant themselves as stated by the AO in reasons recorded for reopening. In view of this, it cannot be considered that the income chargeable to tax has escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. Thus, this mandatory condition which is required to be fulfilled when an assessment that was originally made u/s.143(3) is sought to be reopened alter the expiry of four years from the end of the relevant assessment year is not fulfilled in the present case. In this regard, reliance is placed on the decision of the Hon’ble Bombay High Court in the case of IPCA Laboratories Ltd. Vs. DCIT 251 ITR 468 = 2003-TIOL-58-HC-MUM-IT, wherein it was held that by virtue of proviso 147, no action can be taken for reopening after four years unless the AO has reason to believe that income has escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. The relevant part of the decision of the Hon’ble High Court is extracted as under:

5. We find merit in this petition. We are confining this judgment to the facts of the case. In the present case, the period of four years came to an end on 31-3-1997. In the present case, an affidavit has been filed on behalf of the department. In the present case, it is the case of the department in the affidavit that the predecessor of the respondent No. I had passed an order of assessment under section 143(3) on 31-3-1995, computing the total income of the assessee at Rs. 2.86 crores (approx.). That, subsequently, another predecessor in office of the respondent No. 1 formed an opinion that the income chargeable to tax had escaped assessment. This was on 16-3-1999. We have gone through the reasons. The position of law after 1-4-1989, is not in dispute. By virtue of a proviso to section 147, no action can be taken for reopening after four years unless the Assessing Officer has reason to believe that income has escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. In the present case, the affidavit and the reasons disclosed indicate that the department has purported to reopen the assessment only on the basis of change of opinion. This position is, in fact, conceded vide para 3 of the affidavit-in-reply dated 13-3-2001. The reasons also do not spell out failure on the part of the assessee to disclose fully and truly all material facts. In the circumstances, the deeming provision in Explanation 2 to section 147 has no application to the facts of the present case. Section 149 only prescribes the time-limit for giving notice. We are required in this case to look into the facts in order to ascertain whether the pre-condition for the issue of a valid notice under section 148 has been fulfilled or not. We are satisfied on the facts of the present case that reopening is sought on the basis of change of opinion. Further, even in the reasons, there is nothing to indicate that reopening is sought on the ground of the failure on the part of the petitioner to disclose fully and truly all material facts.

19. In view of the discussion above, it is held that the reopening of the assessment under section 147 of the Act made by the AO by issue of notice under section 148 dated 18.03.2014 is legally unsustainable on account of the reason that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment.”

Aggrieved, Revenue is in appeal before Tribunal.

5. We have heard rival contentions and gone through the facts and circumstances of the case. Before us, the learned CIT Departmental Representative, Jacinta Zimik Vashai filed copies of following judgements: –

“1. Siemens Information Systems Ltd. v. ACIT (2012) 343 ITR 188 (Bombay) = 2012-TIOL-186-HC-MUM-IT.

2. Export Credit Guarantee Corporation of India Ltd. v. ADIT (2013) 30 taxmann.com 211 (Bombay) = 2013-TIOL-56-HC-MUM-IT.”

On the other hand, the learned Counsel for the assessee relied on the order of CIT(A).

6. We noted the facts that the assessment for the year under consideration was completed under Section 143(3) of the Act by the Income Tax Officer, Ward-5(1)(4), Mumbai by an order under Section 143(3) of the Act dated 29.12.2009 and indisputably the impugned notice had been issued beyond the period of four years from the end of the assessment year. In this view of the matter, for initiating action under Section 147 of the Act not only the Assessing Officer issuing such notice should have ‘reason to believe’ about escapement of income but also should have belief that such escapement had occurred by reason of either omission or failure on the part of the assessee to disclose fully or truly all the material facts necessary for the assessment. In other words, where however, the initiation is done after the expiry of four years from the end of the relevant Assessment Year, the same can be initiated only and only if the conditions prescribed in the proviso to Section 147 of the Act are satisfied. As per the said proviso, where a scrutiny assessment under Section 143(3) of the Act or a reassessment under Section 147 is completed, for the said assessment year no action under Section 147 of the Act is possible after the expiry of four years from the end of the relevant assessment year unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee.

6. Now, we have gone through the disclosure made by assessee and examination of the same from assessment records. We noted that the reasons mentioned by the AO are clear that even in the reasons the AO has mentioned, “(i) On examination of assessment records it has been seen that in the case of M/s Essar Project Ltd. the accounts were maintained on contract completion basis. However, the assessee being a contractor should have maintained accounts on percentage completion Project. The contract completion method is an incorrect method of accounting which had resulted in deferment of estimated revenue of 389.55 an and tax of Rs. 131.12 Cr. (ii) In the case of assessee for the A. vs 2005-06, 2006-07 & 2008-09 it has been observed that the assessee had claimed TOS credit of Ps. 8.57 Cr. On progressive payments and mobilization amounts received aggregating to Ps. 576 Cr. during the above mentioned years. Since the assessee was following project completion method and no Income was offered during these years allowing 1135 credit for these years without offering corresponding income was incorrect.”

7. We noted from the facts on record that there was no failure on the part of the assessee to disclose fully and truly the material facts necessary for completion of assessment as alleged in the reasons extracted above. In fact, the assessee had duly compiled with the directions issued by the AO during the course of original assessment proceedings and on appraisal of the same facts, which is evident from the above reasons recorded by the AO, is outside the scope of the proviso to section 147 of the Act. We noted that the assessee company was consistently following the contract completion method in prior years as well as in the year under appeal. The above accounting method has been accepted by the Income Tax Department in earlier years, which can be verified from the assessment orders or the appellate orders of the assessee of the earlier years. As per records, the TDS credited of Rs. 8.57 crores pertain to AY 2005-06, 2006-07 and 2008-09, whereas the assessee’s AY is 2007-08 and hence, the same is not relevant for AY 2007-08. It means that the assessee has filed complete details and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the relevant assessment year in respect of both the issues narrated in the reasons recorded. Hence, we are of the view that the assessee’s case squarely filed under the proviso to section147 of the Act and reopening is bad.

8. To support our view, we follow the decision of Hon’ble Supreme Court in the case CIT vs. Framer France (2003) 264 ITR 566 (SC) = 2003-TIOL-88-SC-IT, wherein it has taken the view that the first proviso to section 147 of the Act lays down an exception whereby the AO is not permitted to exercise his jurisdiction in reopening the assessment beyond a period of four years from the end of the relevant assessment year. Once the exception carved out by proviso to s. 147 of the Act comes into play, the case would fall outside the ambit of s. 147 of the Act. As per proviso to s. 147 of the Act, no action under this section can be taken after expiry of four years from the end of the relevant assessment year, unless inter alia, income chargeable to tax had escaped assessment by reason of failure of the assessee to make full and true disclosure of all material facts necessary for assessment. In case, there being no whisper in the reasons supplied to assessee that income escaped assessment by reason of assessee’s failure to make a full and true disclosure of all material facts necessary for assessment, notice under section 148 of the Act issued beyond four years from the end of relevant assessment year was barred by limitation under proviso to s. 147 of the Act, hence without jurisdiction. If either of these conditions is not fulfilled the notice is without jurisdiction. If the notice issued u/s 148 fails to satisfy either of the conditions, it deserves to be quashed. However, the officers have many time issued notices for reopening the assessments even beyond four years from the end of the assessment year without fulfillment of any of the legal conditions as stipulated in the first proviso to this section. Such an action of the revenue authorities is strictly challenged by the taxpayers at large in the court of law and courts have quashed the notice issued by Revenue authorities or quashed the re-assessment orders. Hon’ble Supreme Court affirmed the judgment of Hon’ble Allahabad High Court in the case Former vs. CIT (2001) 247 ITR 436 (All) = 2009-TIOL-62-ITAT-DEL wherein Hon’ble Allahabad High court has considered the issue as under: –

“Having heard the learned counsels for the parties, we are of the view that these petitions deserve to be allowed.

It may be mentioned that a new section substituted section 147 with effect from 1-4-1989. The relevant part of the new section 147 is as follows :

“147. Income escaping assessment.-If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) :

Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year.”

This new section has made a radical departure from the original section 147 inasmuch as clauses (a) and (b) of the original section 147 have been deleted and a new proviso added to section 147.

10. In Rakesh Aggarwal v. Asstt. CIT[1997] 225 ITR 4961, the Delhi High Court held that in view of the proviso to section 147 notice for reassessment under section 147/148 should only be issued in accordance with the new section 147, and where the original assessment had been made under section 143(3), then in view of the proviso to section 147 the notice under section 148 would be illegal if issued more than four years after the end of the relevant assessment year. The same view was taken by the Gujarat High Court in Shree Tharad Jain Yuvak Mandal v. ITO[2000] 242 ITR 612.

In our opinion, we have to see the law prevailing on the date of issue of the notice under section 148, i.e., 20-11-1998. Admittedly, by that date, the new section 147 has come into force and, hence, in our opinion, it is the new section 147 which will apply to the facts of the present case. In the present case, there was admittedly no failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for the assessment. Hence, the proviso to the new section 147 squarely applies, and the impugned notices were barred by limitation mentioned in the proviso.

11. The learned departmental counsel relied on section 153(3)(ii) of the Act and submitted that there was no bar of limitation in view of the said provision. We do not agree. Section 153 relates to passing of an order of assessment and it does not relate to issuing of notice under section 147/148. Moreover, this is not a case where reassessment is sought to be made in consequence of, or to give effect to, any finding or direction contained in the order of the Tribunal in Boudier Christian’s case. As already stated above, Boudier Christian’s case related to the employees of the company, whereas the impugned notice has been issued to the company. Hence, it cannot be said that the proposed reassessment in consequence of the impugned notice would be in consequence of, or to give effect to, any findings of the Tribunal in Boudier Christian’s case.

A direction or finding as contemplated by section 153(3)(ii ) must be a finding necessary for the disposal of a particular case, that is to say, in respect of the particular assessee and in relevance to a particular assessment year. To be a necessary finding it must be directly involved in the disposal of the case. To be a direction as contemplated by section 153(3)(ii) it must be an express direction necessary for the disposal of the case before the authority or court vide Rajinder Nath v. CIT[1979]120 ITR 141 (SC) = 2002-TIOL-1627-SC-IT; Gupta Traders v. CIT[1982] 135 ITR 5042 (All.); CIT v. Tarajan Tea Co. (P.) Ltd.[1999] 236 ITR 4773 (SC) = 2002-TIOL-2523-SC-IT and CIT v. Goel Bros.[1982] 135 ITR 5114(All.), etc. The case of an expatriate employee was to be decided on the basis of the provisions of article XIV of the treaty, whereas corporate income was to be decided on the basis of either article III or article XVI of the treaty or section 44BB. Hence, the observation of the Tribunal in Boudier Christian’s case was not a direction necessary for the disposal of the appeal relating to the petitioner. The eligibility of income of the petitioner from manning and management contracts was never an issue directly or indirectly involved in the case of Boudier Christian.

Moreover, the Tribunal in the appeal relating to the assessment of the petitioner’s own case, vide Dy. CIT v. O.N.G.C. As agent of Foramer France[1999] 70 ITD 468 (Delhi) = 2003-TII-83-ITAT-DEL-INTL, has considered the decision of the Tribunal in Boudier Christian’s case. It is settled law that an appeal is a continuation of the original proceedings and, hence, when the Tribunal in the appeal relating to the petitioner has considered the decision of the Tribunal in Boudier Christian’s case, the impugned notice under section 147/148 would obviously be on the basis of a mere change of opinion by the income-tax authorities, which would not be valid as held by the Supreme Court in Indian & Eastern Newspaper Society v. CIT[1979] 119 ITR 9961 = 2002-TIOL-870-SC-IT-LB; Gemini Leather Stores v. ITO[1975] 100 ITR 1 (SC) =2002-TIOL-1230-SC-IT and Jindal Photo Films Ltd. v. Dy. CIT[1998] 234 ITR 1702(Delhi) = 2003-TIOL-597-HC-DEL-IT, etc.

12. In the decision of the Tribunal in the assessee’s own case O.N.G.C.’s (supra), it has been held that the income from the contract between the parties was business income and not fee for technical services.

13. Although we are of the opinion that the law existing on the date of the impugned notice under section 147/148 has to be seen, yet even in the alternative even if we assume that the law prior to the insertion of the new section 147 will apply, even then it will make no difference since even under the original section 147 notice for reassessment could not be given on the mere change of opinion as held in numerous cases of the Supreme Court, some of which have been mentioned above. Since the Tribunal in the appeal relating to the assessee-company had considered the Tribunal’s earlier decision in Boudier Christian’s case, it will obviously amount to mere change of opinion, and, hence, the notice under section 147/148 would be illegal.”

9. In view of the above facts of the present case and the judgment of Hon’ble Supreme Court in the case of Foramer France (supra), we confirm the order of CIT(A) quashing the re-assessment proceedings and dismiss this issue of Revenue’s appeal. As we have decided the jurisdictional issue only, and confirm the order of CIT(A) quashing the reassessment order, we refrain our self from adjudicating the issue on merits. Accordingly, the appeal of Revenue is dismissed.

10. In the result, the appeal of Revenue is dismissed.

(Order pronounced in the open court on 20.06.2019)

(Paras are numbered as per the original text: Editor)

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