SC gives relief to NDTV, quashes IT notice

A bench comprising Justices L. Nageswara Rao and Deepak Gupta said, "We accordingly allow the appeal by holding that the notice issued to the assessee (NDTV) shows sufficient reasons to believe on the part of the assessing officer to reopen the assessment but since the revenue has failed to show non-disclosure of facts, the notice having been issued after a period of four years is required to be quashed."

However, the apex court clarified that though it quashed the 2015 notice on technical ground, it left it open for the revenue department to issue a fresh notice under pertinent IT provisions.

"The revenue department may issue a fresh notice taking benefit of the second proviso if otherwise permissible under law," said the apex court.

The assessing officer had issued notices to NDTV under Section 148 of the Income Tax Act on the ground of escaping income from assessment.

"The assessee then asked for reasons and thereafter on August 4, 2015, the reasons were supplied. The main reason given was that in the following assessment year, i.e. assessment year 2009-10, the assessing officer had proposed a substantial addition of Rs 642 crore to the account of the assessee on account of monies raised by the assessee through its subsidiaries NDTV BV, The Netherlands, NDTV Networks BV, The Netherlands (NNBV), NDTV Networks International Holdings BV, The Netherlands (NNIH) and NNPLCa, observed the court.

The apex court said that these notices were time-barred, hence unsustainable. NDTV had urged that no income was derived from the foreign entity and a loan cannot be termed to be an asset or an income and had submitted that the notice cannot be said to have been issued under the second proviso.

Citing the 2015 notice, the apex court said, "There is no case set up in relation to the second proviso either in the notice or even in the reasons supplied on August 4, 2015 with regard to the notice.

"It is only while rejecting the objections of the assessee that reference has been made to the second proviso in the order of disposal of objections dated November 23, 2015."

The top court examined whether the revenue department can take the benefit of the extended period of limitation of six years for initiating proceedings under the first proviso Section 147 of the Act.

"This can only be done if the revenue can show that the assessee had failed to disclose fully and truly all the material facts necessary for its assessment," the top court noted.

The court said that in its view, NDTV was not guilty of nondisclosure of material facts. "We are clearly of the view that the notice and reasons given thereafter do not conform to the principles of natural justice and the assessee did not get a proper and adequate opportunity to reply to the allegations which are now being relied upon by the revenue," the apex court said.