ACIT, NEW DELHI vs. M/S. SMCC CONSTRUCTION INDIA LTD.,, NEW DELHI

The brief facts of the case are that the assessee company is a joint venture between Mitsui Construction Co. ltd, Japan and M/s Kairali Construction, India and was engaged in providing engineering services and also undertaking turnkey construction projects. The assessee filed its return of income on 30th November, 2006 declaring total income at Rs.16,09,43,870/-. The learned Assessing Officer (in short ‘AO’) assessed the total income at Rs.17,13,70,780/- u/s 143(3) of the Income Tax Act, 1961 (in short ‘Act’) on 24.12.2008 after making certain additions. Thereafter, he issued a notice u/s 148 of the Act on 30-03-2011 for re-opening of the assessment stating that income of the assessee had escaped assessment. The ld. AO recorded following reasons for issue of notice u/s 148 of the Act: ―The return of income was filed on 30/11/2006 declaring an income of Rs.16,09,43,870/-. Subsequently, assessment in this case was completed u/s 143(3) on 24/12/2008 at an income of Rs.17,13,70,780/-. It has now been noticed that in the A Y 2005-06 the assessee has disallowed a sum of Rs.2,39,60,828/- being payment of royalty on sales made to foreign clients as the expenses charged to profits & loss account was inadmissible as deduction u/s 40(a) of the Act. In AY 2006-07, the assessee has claimed the said amount of Rs.2,39,60,828/- as the TDS was paid on this amount in the FY relevant to the A Y 2006-07. As the payment of royalty was in the nature of capital and gives enduring benefit to the business of the assessee, the same is not allowable as revenue expenditure. The royalty being intangible assets, after allowing 25% depreciation on Rs 2,39,60,828/- i.e. Rs 59,90,2077- should be disallowed and added to the income of the assessee. This resulted in under assessment income by Rs.1,79,70,621/-. The escapement of income has been on account of failure on the part of the assessee to truly an fully disclose all the material facts necessary for assessment. In view of this, I have reason to believe that an amount of Rs.1,79,70,621/- lacs has escaped assessment within the meaning of section 147 of the IT Act, 1961."

In the year under consideration, the assessee company paid royalty of Rs. 2,39,60,828 to Sumitomo Mitsui Construction Co. Ltd (in short ‘SMCC’) for rendering technical services to the assessee. The ld. AO finally reassessed the total income of the assessee at Rs.17,89,14,500/- under section 147 of the Act on 30.12.2011. In the reassessment order, the ld. AO held that the royalty expenses of Rs.2,39,60,828/- paid to SMCC was capital in nature as against the expense claimed by the assessee as revenue and after allowing depreciation @ 25% of Rs.2,39,60,828/- i.e. Rs.59,90,207/-, he added the balance amount of Rs.1,79,70,621/- to the income of the assessee.

Aggrieved, the assessee filed appeal before the learned Commissioner of Income-Tax (Appeals) [in short ‘ld CIT(A)’] and challenged the reassessment action of the AO as well as the findings of the AO in treating the royalty expenses as capital in nature. The ld. CIT(A) after considering the submission of the assessee and the various case laws cited therein, quashed the reassessment proceeding on the ground of change of opinion by the AO. The relevant para of the finding of the CIT(A) is reproduced as under :- ―From the facts stated by the assessee and from earlier assessment order u/s 143(3) during the course of original assessment proceedings, the appellant vide its submission dated 05.09.2008 filed the details regarding the payment of royalty expenses on sales amounting to Rs. 6,97,49,506/- and the same was enclosed as Annexure – 11 and claim of royalty was discussed at length during the course of assessment proceedings. Thus, the assessee vide submissions dated 05.09.2008 has submitted the requisite details with respect to the agreement entered into by the assessee for payment of royalty along with the copy of challans through which the TDS on royalty was deposited. Copy of approvals received from Ministry of Industry for royalty payment and technical collaboration agreement were also filed. Thus, the appellant, at the time of scrutiny assessment proceedings, had fully and truly disclosed all material facts and after scrutinizing the details furnished by the appellant, The AO making the regular assessment had formed an opinion that the appellant has correctly claimed these expenses. Further, no new facts or material had been brought on record which provides reasons to believe that the income of the appellant has escaped assessment. Also the AO without any new facts or material brought on record formed an opinion that this expenditure gave benefits of an enduring nature to the appellant and the same should be treated as capital expenditure in the nature of intangible asset. The details are at page 14 to 21 of this order. After perusal of the above facts and the facts stated in the assessment roder I am of the opinion that this is a case of change of opinion as the successor Assessing Officer has merely recorded a different opinion in relation to an issue to which the earlier Assessing Officer who framed the original assessment has already applied his mind and come to a conclusion that royalty payments are revenue in nature.‖ 5. Aggrieved, the Revenue is before us.

The learned Senior Departmental Representative (DR) relied on the order of the Assessing Officer and submitted that while passing order u/s 143(3) of the Act, the assessing officer did not apply his mind on the issue of royalty and therefore no opinion was formed by him on the issue, so the issue of change of opinion does not arise.

7. The ld. Authorized Representative (AR) on the other hand, vehemently argued that all the facts regarding royalty expenses were filed before the ld. AO and after considering the submission of the assessee, no addition was made in the order u/s 143(3) of the Act. He further submitted that while reopening the assessment, no new facts or material has been brought on record by the ld. AO, which can form a reason to believe that the income of the appellant has escaped assessment therefore the reasons recorded by the Assessing Officer was a mere change of opinion only. He, further, relied on the various judgments and decisions already submitted before the ld. CIT(A), which are mentioned at Pages 6 to 13 of the order of the ld CIT(A). Further, the ld. AR drawn our attention to the decision of the coordinate bench of Income Tax Appellate Tribunal (ITAT), in for the assessment year 2008-09 in the case of the assessee itself, wherein the bench has held that the payment made on account of royalty and fee for technical service was revenue in nature. This view of the tribunal has been further confirmed by the Hon’ble Jurisdictional High Court in their judgment dated July 3, 2015 in ITA no. 439/ 2014, ITA no. 511/2014 and ITA no. 526/2014 and therefore, he stated that on merit, the issue is settled in favour of the assessee by the judgment of the Hon’ble High Court, in the case of the assessee itself.

Rival submissions have been heard and material on record perused on the issue of validity of reopening the assessment under section 147 of the Act. Admittedly, in the case, the original assessment was completed u/s 143(3) of the Act and the notice u/s 148 of the Act has been issued within 4 years from the end of the relevant assessment year. The assessment has been sought to be reopened on the ground that the assessee has not disclosed the material facts in respect of royalty truly and fully in assessment.

In CIT vs. Kelvinator of India Ltd. 256 ITR 1 the Full Bench of the Hon’ble Delhi High Court was considering a case of reopening u/s 147 within 4 years from the end of the assessment year. It was held that section 147 of the Act does not postulate conferment of power upon the Assessing Officer to initiate reassessment proceedings upon a mere change of opinion. On appeal by the department to the Supreme Court, the Hon’ble Supreme court as reported in CIT V.s Kelvinator of India 320 ITR 561, dismissing the appeal, held as under: ―6. On going through the changes, quoted above, made to section 147 of the Act, we find that, prior to the Direct Tax Laws (Amendment) Act, 1987, reopening could be done under the above two conditions and fulfilment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act (with effect from 1st April, 1989), they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to reopen the assessment. Therefore, post-1st April, 1989, power to reopen is much wider. However, one needs to give a schematic interpretation to the words " reason to believe" failing which, we are afraid, section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of " mere change of opinion", which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review ; he has the power to reassess. But reassessment has to be based on fulfillment of certain preconditions and if the concept of " change of opinion" is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of " change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, the Assessing Officer has power to reopen, provided there is " tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words " reason to believe" but also inserted the word " opinion" in section 147 of the Act. However, on receipt of representations from the companies against omission of the words " reason to believe", Parliament reintroduced the said expression and deleted the word " opinion" on the ground that it would vest arbitrary powers in the Assessing Officer. We quote herein below the relevant portion of Circular No. 549 dated October 31, 1989 ([1990] 182 ITR (St.) 1, 29), which reads as follows : " 7.2 Amendment made by the Amending Act, 1989, to reintroduce the expression ' reason to believe' in section 147.—A number of representations were received against the omission of the words ' reason to believe' from section 147 and their substitution by the ' opinion' of the Assessing Officer. It was pointed out that the meaning of the expression, ' reason to believe' had been explained in a number of court rulings in the past and was well settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression ' has reason to believe' in place of the words ' for reasons to be recorded by him in writing, is of the opinion' . Other provisions of the new section 147, however, remain the same."

For the afore-stated reasons, we see no merit in these civil appeals filed by the Department ; hence, dismissed with no order as to costs.‖ 10. Further in the case of CIT Vs. Munjal Showa Ltd in and ITA No.150/2011, the jurisdictional High court relying on the judgment of the Hon’ble Supreme Court in the case of CIT Vs Kelvinator of India ( supra) has held as under:- ―15. In view of the aforesaid discussion, we are clearly of the view that the present case falls in the category of change of opinion as at the time of original proceedings