The ITO has no jurisdiction to assess income tax on the same income which was already assessed by the Tribunal.

KALYAN JYOTI SENGUPTA, J.

( 1 ) THIS writ petition is directed against the proceedings initiated by the assessing authority which was started with the impugned notices dated June 10, 1997, May 21, 1997, June 6, 1997, June 25, 1997, February 19, 1998 and the impugned order dated March 24, 1998.

( 2 ) IT appears that the assessing authority has assessed the income as well as tax to be paid by the writ petitioner. In view of the default, the aforesaid authority has directed to initiate a penalty proceeding under Sections 271b and 271 (1) (c ). It appears from the impugned order which was passed in the aforesaid impugned proceedings that it has been held amongst others that the writ petitioner is obliged to pay income-tax on the income which fetched from consultancy services rendered to Larsen and Toubro. This case has a slightly long history.

( 3 ) THE writ petitioner-company upon an agreement in writing rendered technical know-how and consultancy services to the Indian company, Larsen and Toubro. Admittedly, the writ petitioner-company is a foreign company. The petitioner earned a substantial amount on account of the fees paid by Larsen and Toubro being the Indian company. The writ petitioner on protest paid a sum of Rs. 7,87,72,407 on account of advance tax on or about August 23, 1994. It is stated in the petition that the aforesaid advance tax was paid in view of a refusal to issue no objection certificate for remittance of 85 per cent. of the total income, from India to Austria. Immediately thereafter the petitioner made an application in Form No. 30 under Section 237 of the said Act and Rule 41 (2) of the Income-tax Rules, 1962, accompanied by a return claiming refund of the aforesaid as fees earned by the petitioner are not taxable in India under the Double Taxation Avoidance Agreement between the Indian Government and the Austrian Government. By an order dated December 11, 1996, the Income-tax Officer concerned held that the said income is taxable. So the return filed was held to be invalid. So, on April 16, 1997, an appeal was preferred before the concerned Income-tax Commissioner. On May 19, 1997, the appeal was allowed holding that the aforesaid amount is refundable and to treat the return to be valid.

( 4 ) THE Department thereafter took this matter up to the Tribunal. The concerned Tribunal not only upheld the findings and the order of the appellate authority but also held, amongst others, that the aforesaid income fetched from consultancy fees, derived by the petitioner, is not taxable. It appears from the judgment which is full of reasons, both on fact and law, that the learned Tribunal has gone into the factual aspect in great detail. The learned Tribunal considered the agreement and other materials. While doing so it was held by the Tribunal that the writ petitioner being a foreign company and having no place of business in India, the income fetched from the aforesaid transaction is not taxable.

( 5 ) MR. Murarka, learned counsel appearing for the writ petitioner, submits that the proceedings initiated by the assessing authority and the order passed by him is wholly an act without jurisdiction. He argues that when the Tribunal on the self-same facts and circumstances and considering all the materials has held that the petitioner is not obliged to pay any tax and, further, the tax which has already been paid is liable to be refunded, it was not open for the assessing authority to upset the judgment of the Tribunal. Such act is a gross breach of quasi-judicial discipline.

( 6 ) MR. Murarka wants to cite a number of decisions of the apex court on this point. He argues that the Department concerned tried unsuccessfully to upset this decision of the Tribunal by applying for reference and correction. The Department made an application for reference to this court. This application too has been rejected. He has drawn my attention to the Division Bench judgment of this court dismissing the reference of the Department

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