The Commr Of Income Tax vs M/S Samsung Electronics Co Ltd on 24 September, 2009
23. If,
as suggested by the counsel for the Revenue, we permit the Assessing
Officer to ascertain full facts and bring them on record, and then
decide whether income chargeable to tax had escaped assessment or
not, we would permit the Assessing Officer to reopen the assessment
only for fishing enquiry. Significantly, before issuing notice for
reopening the assessment, the Assessing Officer had gathered the
assessee's views on the nature of payment made. The assessee had
firmly contended that the payments did not incur any tax liability in
India on the supplier. The assessee, therefore, contended that
despite the decision of Karnataka High Court in the case of
Commissioner of Income-Tax and another vs. Samsung Electronics Co.Ltd
(supra), since the said judgment is stayed by the Apex Court, the
assessee was not required to deduct tax at source. Without any
further enquiry, the Assessing Officer straightaway issued notice for
reopening such assessment. As we have already held, the Assessing
Officer did not have any basis to permit the Assessing Officer to
form a belief that income chargeable to tax in case of the assessee
had escaped assessment. In that view of the matter, both the
petitions are allowed. Notices impugned at Annexure-A to both the
petitions, are quashed. Rule is made absolute.