M/S TELEKOM MALAYSIA BERHAD vs UNION OF INDIA & ORS.

M/s. Telekom Malaysia Berhad, a Malaysian company is aggrieved by the reassessment order passed by the 2nd Respondent-Deputy

Commissioner of Income Tax (International Taxation), Circle-2 (1), Koramangala, Bangalore, on 18.12.2017 for A.Y.2009-10 raising a demand

of Rs.20,84,448/- against the petitionercompany.

The ground on which the said reassessment order is sought to be assailed before this Court directly is, the alleged breach of principles of natural

justice by the Respondent-Assessing Authority viz., non-service of Statutory Notice under Section 148 of the Act and nongrant of adequate

opportunity to raise the objections to the reassessment proceedings undertaken for the said A.Y.2009-10.

The relevant portion of the impugned order Annexure-F dated 18.12.2017 about the service of notice on the petitioner-company is quoted

below for ready reference:-

Issue of Notice u/s 148 of the Income-tax Act, 1961 and other notices:

3.1 After obtaining necessary approval of the Commissioner of Income-tax (International Taxation), Bengaluru notice u/s 148 of the Income-tax

Act, 1961 was issued to the assessee on 29-03-2016 by the DCIT (IT), Circle-1(1), Bangalore. The notice was duly served on the assessee.

3.2 The assessee did not respond to the aforesaid notice u/s 148. Notice u/s 129 rws 142(1) of the Income-tax Act, 1961 was issued to the

assessee on 02-06-2017. The assessee did not respond to the notice. Thereafter, notice u/s 142(1) was again issued on 12-07-2017 to the

assessee. Vide order u/s 127 dated 11-10-2017 under F. No.96/CIT (Intnl. Taxn.)/17-18 the CIT (International Taxation), Bengaluru, the CIT

(International Taxation), Bengaluru transferred the case of the assessee to this office. Therefore, due to change in incumbent, notices u/s 129 and

142(1) of the Income-tax Act, 1961 was issued to the assessee on 16-10-2017, followed by letter dated 07-11-2017 for compliance to the

notices issued and affording the assessee an opportunity of personal appearance. The assessee did not respond to any of these notices/letters"".

The learned counsel for the petitioner Mr.Tushar Jarwal was at pains to emphasize before this Court that the petitioner-company based in Kuala

Lampur, Malaysia, never received any Notice under Section 147/148 of the Act at Malaysia address and the first e-mail communication which

came to it was of dated 01.12.2017, received by them on 08.12.2017 and immediately they sent a communication by e-mail to the Respondent -

Deputy Commissioner on 15.12.2017 asking for some more time to raise objections up to 15.01.2018. The letter dated 01.12.2017 addressed to

the Principal Officer of the said assessing company-M/s.Telecom Malaysia Berhad is produced on record, which referred to the initial notice

issued under Section 148 of the Act on 29.03.2016 and thereafter, at least three notices were issued under Section 142(1) of the Act requiring

attendance of the assessing company before the Tax Authority dated 29.09.2016, 12.07.2017 and 16.10.2017 and also letters dated 07.11.2017

and 22.11.2017.

The petitioner-company does not appear to have responded to any of these communications and either ask for the reasons for reassessment

proceedings or raise its objections to the proposed reassessment for assessing its income accruing or arising in India, out of the works executed by

it in India. This Court has no reason to believe that despite categorical averments in the impugned order that right from the Notice dated

29.03.2016, at least three more notices subsequent thereto were served upon the petitioner-company vide paras 3.1 and 3.2 quoted above, the

petitionercompany was not aware of the pending proceedings in this regard with the Respondent-Assessing Authority.

The averments made in the writ petition and the documents produced now, only reflect the proceedings undertaken in the month of December

2017 only and the fax, communications, e-mails and responses prior thereto, have not been disclosed in the petition for the reasons best known to

the petitioner - assessing company.

From the letter Annexure-D dated 28.12.2017, paras 5 and 6 thereof are quoted below for ready reference, also discloses prima-facie, the

attitude of the ignorance and non-cooperation on the part of the petitioner-company in the tax proceedings undertaken by the Indian Income Tax

Department for the works executed way back in the Assessment year 2009-10 (relevant financial year is 2008-09). If a Foreign Telekom

company at petitioner''s level was ignorant of the requirement of even obtaining a PAN number from the Indian Income Tax Department and was

required to file its Returns under the provisions of the I.T Act, it has to thank itself rather than the Respondent-authorities for the proceedings

undertaken against it. Paras 5 and 6 of the said communication dated 28.12.2017 vide Annexure-D is quoted below for ready reference:-.

Nonetheless, in order to fully cooperate with the present proceedings and to understand the legal position, TM has already initiated the

process of appointing a legal representative to appear before your good office. In addition, in accordance with the law declared by the Hon''ble

Supreme Court of India in GKN Driveshafts (India) Ltd. vs. Income Tax Officer and Others (2003) 1 SCC 72], TM would like to exercise its

right under law to seek reasons for issuance of the purported Statutory Notice. For doing so, TM understands that it has to file a return for which a

Permanent Account Number (""PAN"") is required.

TM has already started the process of applying for a PAN so that it can file a return. Your good office will appreciate that obtaining a PAN

takes about three (3) weeks, as the supporting documents have to be legalized in Malaysia and sent to India. Since the first communication was

received from your good office on 8 December 2017 (which directed TM to appear before your good office on 8 December 2017 itself, which

was impossible), TM is still awaiting the issuance of its PAN"".

If a foreign company intends to challenge its tax liability under the provisions of the Indian Income Tax Act, it has to be vigilant, attentive and co-

operative with the Indian Income Tax authorities and raise their proper objections with relevant evidence and documents before them in due time

and they cannot be allowed to take it for granted that they are either not subject to the Indian Income Tax Act or need not attend to the

assessment proceedings before the Income Tax Authorities in India.

Such a self assumed immunity by foreign companies is neither envisaged under the provisions of the Income Tax Act nor it needs to be

encouraged in the Courts of law. For the income arising and accruing in India, even the Foreign companies are subject to taxation and they must

comply with the provisions of the Indian Income Tax, 1961. The documents produced with the present writ petition only for the period of

December 2017, prima-facie appears to be half truth and they do not completely reveal all the facts.

It cannot be believed that the proceedings initiated right in the Month of March 2016 followed by various notices throughout the period, on

29.03.2016, 02.06.2017, 12.07.2017, 11.10.2017 and 16.10.2017 followed by letter dated 07.11.2017, all have not been issued or served

upon the petitionercompany. The stipulation in this regard in the quoted paras above in the impugned order, is a matter on record and this Court

has no reason to disbelieve these facts and treat them as falsehood per se merely because the company wants to contend like this.

This is besides the point that once an order has been passed against the assessee, the assessee is bound to take recourse to the appellate

forums provided in the Act itself. There is a two tier appellate system under the provisions of Income Tax Act, 1961. The first appeal lies before

the CIT (Appeals) under Section 246 of the Act and second appeal lies before the ITAT under Section 253 of the Act. Thereafter, on the

question of law, an appeal lies to the High Court under Section 260- A of the Act on the substantial questions of law arising from the orders of the

Tribunal.

Therefore, the comprehensive Code of Income Tax Act, 1961, provides for a complete mechanism for redressal of grievance of the assessees

including the foreign companies and there is no special reason to allow the foreign companies to bypass these appellate forums to directly approach

the constitutional Courts by way of writ jurisdiction under Article 226 of the Constitution of India against the reassessment orders which are ex-

facie appealable under the provisions of the Act.

The Court is therefore satisfied that there is no good reason to invoke the extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India and permit the petitioner-company to lay a challenge to the impugned reassessment order dated 18.12.2017 before this Court

at this stage.

The writ petition found to be devoid of merit and is liable to be dismissed and accordingly, it is dismissed. No costs.