Once, the issue has been decided by the Hon’ble High Court in favour of the assessee, on the same very issue assessment for the subsequent assessment years cannot be reopened
Delhi ITAT quashes reassessment proceedings holding the same to be invalid on the ground that the very basis on which re-opening is initiated i.e. the issue of taxability of receipts in lieu of use of broadcasting services through Assessee’s transponders, has already been decided by the Delhi HC in favour of the Assessee, in Assessee’s own case for previous AYs 2007-2008, 2009-2010, thus the assessment cannot be reopened on the same issue for the subsequent AY; ITAT, noting Assessee’s contention that the said issue is recurring, refers to Delhi HC judgment in Assessee’s own case (in erstwhile name i.e. Shin Satellite Public Company Ltd.), wherein it was held that held that Assessee’s receipts from Indian customers for providing digital broadcast services through transponders do not constitute Royalty, under both Section 9(1)(vi) and Article 12 of India-Thailand DTAA (DTAA), thus not taxable in India; ITAT underscores that once, the issues have been decided in favour of the Assessee by the HC, the Assessee had no reason to offer receipts from use of transponders to tax in India; ITAT also notes that the HC judgment was later approved by the SC in case of Engineering Analysis; Tribunal opines, “Once, the issue has been decided by the Hon’ble High Court in favour of the assessee, on the same very issue assessment for the subsequent assessment years cannot be reopened”, by relying on Delhi HC judgment in Vaish Associates Advocates; ITAT states that the AO having noted that the addition has been made on the recurring issue and also the fact that the issue has been decided in favour of the Assessee by the Delhi HC, still rejected Assessee’s objections, on the ground that the Revenue has filed appeal against the aforesaid Delhi HC judgment which is pending before the SC; ITAT infers, “assessment cannot be allowed to reopen for the reason that the issue is pending before Hon’ble Supreme Court of India specially, when the issue has been decided in the past in favour of the assessee by the Hon’ble High Court”;
Thus, ITAT concludes by remarking, “The foundation for reopening the assessment is itself faulty, hence, the notice u/s.148 of the Act is bad in law
The copy of the order is as under:
