M/S NCELL AXIATA LIMITED V. THE DEPUTY COMMISSIONER OF INCOME TAX

WP/24310/2022

AI Insights

The case involves multiple writ petitions filed by M/S NCELL Axiata Limited against the Deputy Commissioner of Income Tax, International Taxation, challenging the reassessment notices and final assessment orders for various assessment years. The petitions were primarily based on the grounds that the assessments were illegal and without jurisdiction. The court considered the precedents set by a Division Bench's order and similar writ petitions, leading to the decision to quash the impugned orders while reserving the petitioners' right to revive the petitions depending on the Supreme Court's decision on the Division Bench's order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 768665 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 02-11-2023
• Assessment Year: misc
• Other Referred Cases: ITA No.160/2015, WP No.51999/2019, WP No.53137/2008, WP No.5867/2022
• Laws Referred To: Income Tax Act, 1961, Companies Act, 2006
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: DILIP
• Assessee Lawyers: KAMAL SAWHNEY; MOHAMMED SHAKEEB MULLA
• Keywords: Final Assessment Order; Illegal and Without Jurisdiction; Reassessment proceedings; Quash Impugned Notice
• Section: 147; 143(3); 144C(3)

Judgement Text

" - 1 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF NOVEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 24310 OF 2022 (T-IT) C/W WRIT PETITION NO. 24280 OF 2022 (T-IT) WRIT PETITION NO. 24346 OF 2022 (T-IT) WRIT PETITION NO. 24349 OF 2022 (T-IT) IN WP NO. 24310/2022 BETWEEN: M/S NCELL AXIATA LIMITED INCORPORATED UNDER COMPANIES ACT, 2006 (NEPAL) (FORMERLY KNOWN AS M/S.NCELL PRIVATE LIMITED) OFFICE AT EKANTAKUNA, LALITPUR METROPOLITAN CITY, WARD NO.04, NEPAL REPRESENTED BY ITS CHIEF FINANCIAL OFFICER (CFO) MR.ANUPAM BHAT, S/O SHRI MAKHAN LAL BHAT, AGED 57 YEARS, OFFICE AT EKANTAKUNA, LALITPUR METROPOLITAN CITY, WARD NO.04, NEPAL …PETITIONER (BY SRI. KAMAL SAWHNEY, ADVOCATE A/W SRI. MOHAMMED SHAKEEB M MULLA.,ADVOCATE) Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 AND: THE DEPUTY COMMISSIONER OF INCOME TAX INTERNATIONAL TAXATION, CIRCLE-2(2) ROOM NO.430, 4TH FLOOR, BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU-560095 REPRESENTED BY HIGH COURT GOVERNMENT PLEADER HIGH COURT OF KARNATAKA, BANGALORE-560 001. …RESPONDENT (BY SRI. DILIP M.,ADVOCATE) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED NOTICE DATED 01.03.2021 ISSUED BY THE RESPONDENT (ANNEXURE-A) ITBA/AST/S/148/2020- 21/103113857(1) INITIATING REASSESSMENT PROCEEDINGS IN THE CASE OF THE PETITIONER FOR AY 2014-15; QUASH THE IMPUGNED FINAL ASSESSMENT ORDER DATED 23.05.2022 PASSED BY THE RESPONDENT (ANNEXURE-B) U/S 143(3) R/W 147 R/W 144C(3) IT ACT FOR BEING ILLEGAL AND WITHOUT JURISDICTIONAL. IN WP NO. 24280/2022 BETWEEN: M/S NCELL AXIATA LIMITED INCORPORATED UNDER COMPANIES ACT, 2006 (NEPAL) (FORMERLY KNOWN AS M/S.NCELL PRIVATE LIMITED) OFFICE AT EKANTAKUNA, LALITPUR METROPOLITAN CITY, - 3 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 WARD NO.04, NEPAL REPRESENTED BY ITS CHIEF FINANCIAL OFFICER (CFO) MR.ANUPAM BHAT, S/O SHRI MAKHAN LAL BHAT, AGED 57 YEARS, OFFICE AT EKANTAKUNA, LALITPUR METROPOLITAN CITY, WARD NO.04, NEPAL. …PETITIONER (BY SRI. KAMAL SAWHNEY, ADVOCATE A/W SRI. MOHAMMED SHAKEEB M MULLA.,ADVOCATE) AND: THE DEPUTY COMMISSIONER OF INCOME TAX INTERNATIONAL TAXATION, CIRCLE-2(2) ROOM NO.430, 4TH FLOOR, BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU-560095 REPRESENTED BY HIGH COURT GOVERNMENT PLEADER HIGH COURT OF KARNATAKA, BANGALORE-560 001. …RESPONDENT (BY SRI. DILIP M.,ADVOCATE) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED NOTICE DATED 01.03.2021 ISSUED BY THE RESPONDENT (ANNEXURE-A) ITBA/AST/S/148/2020- 21/1031113867(1) INITIATING REASSESSMENT PROCEEDINGS IN THE CASE OF THE PETITIONER FOR AY 2013-14; QUASH THE IMPUGNED FINAL - 4 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 ASSESSMENT ORDER DATED 19.05.2022 PASSED BY THE RESPONDENT (ANNEXURE-B) U/S 143(3) R/W 147 R/W 144C(3) IT ACT 1961 FOR BEING ILLEGAL AND WITHOUT JURISDICTIONAL. IN WP NO. 24346/2022 BETWEEN: M/S NCELL AXIATA LIMITED INCORPORATED UNDER COMPANIES ACT, 2006 (NEPAL) (FORMERLY KNOWN AS M/S.NCELL PRIVATE LIMITED) OFFICE AT EKANTAKUNA, LALITPUR METROPOLITAN CITY, WARD NO.04, NEPAL REPRESENTED BY ITS CHIEF FINANCIAL OFFICER (CFO) MR.ANUPAM BHAT, S/O SHRI MAKHAN LAL BHAT, AGED 57 YEARS, OFFICE AT EKANTAKUNA, LALITPUR METROPOLITAN CITY, WARD NO.04, NEPAL …PETITIONER (BY SRI. KAMAL SAWHNEY, ADVOCATE A/W SRI. MOHAMMED SHAKEEB M MULLA.,ADVOCATE) AND: THE DEPUTY COMMISSIONER OF INCOME TAX INTERNATIONAL TAXATION, CIRCLE-2(2) ROOM NO.430, 4TH FLOOR, BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, - 5 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 BENGALURU-560095 REPRESENTED BY HIGH COURT GOVERNMENT PLEADER HIGH COURT OF KARNATAKA, BANGALORE-560 001. …RESPONDENT (BY SRI. DILIP M.,ADVOCATE) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED NOTICE DATED 31.03.2021 ISSUED BY THE RESPONDENT (ANNEXURE-A) ITBA/AST/S/148/2020- 21/1032075147(1) INITIATING REASSESSMENT PROCEEDINGS IN THE CASE OF THE PETITIONER FOR AY 2017-18; QUASH THE IMPUGNED FINAL ASSESSMENT ORDER DATED 19.05.2022 PASSED BY THE RESPONDENT (ANNEXURE-B) U/S 143(3) R/W 147 R/W 144C(3) INCOME TAX ACT, 1961 FOR BEING ILLEGAL AND WITHOUT JURISDICTIONAL. IN WP NO. 24349/2022 BETWEEN: M/S NCELL AXIATA LIMITED INCORPORATED UNDER COMPANIES ACT, 2006 (NEPAL) (FORMERLY KNOWN AS M/S.NCELL PRIVATE LIMITED) OFFICE AT EKANTAKUNA, LALITPUR METROPOLITAN CITY, WARD NO.04, NEPAL REPRESENTED BY ITS CHIEF FINANCIAL OFFICER (CFO) MR.ANUPAM BHAT, S/O SHRI MAKHAN LAL BHAT, AGED 57 YEARS, OFFICE AT EKANTAKUNA, - 6 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 LALITPUR METROPOLITAN CITY, WARD NO.04, NEPAL …PETITIONER (BY SRI. KAMAL SAWHNEY, ADVOCATE A/W SRI. MOHAMMED SHAKEEB M MULLA.,ADVOCATE) AND: THE DEPUTY COMMISSIONER OF INCOME TAX INTERNATIONAL TAXATION, CIRCLE-2(2) ROOM NO.430, 4TH FLOOR, BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU-560095 REPRESENTED BY HIGH COURT GOVERNMENT PLEADER HIGH COURT OF KARNATAKA, BANGALORE-560 001. …RESPONDENT (BY SRI. DILIP M.,ADVOCATE) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED NOTICE DATED 01.03.2021 ISSUED BY THE RESPONDENT (ANNEXURE-A) ITBA/AST/S/148/2020- 21/1031853898(1) INITIATING REASSESSMENT PROCEEDINGS IN THE CASE OF THE PETITIONER FOR AY 2015-16; QUASH THE IMPUGNED FINAL ASSESSMENT ORDER DATED 19.05.2022 PASSED BY THE RESPONDENT (ANNEXURE-B) U/S 143(3) R/W 147 R/W 144C(3) IT ACT FOR BEING ILLEGAL AND WITHOUT JURISDICTIONAL. - 7 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The question for consideration in these writ petitions would be whether they must stand disposed of in the light of the Division Bench’s order dated 14.07.2023 in ITA No.160/2015 and connected matters and the disposal of similar writ petitions in WP No.51999/2019 connected with WP No.53137/2008 and in WP No.5867/2022 and connected matters in the light of such decision. Sri Kamal Sawhney, the learned Counsel for the petitioners, and Sri M.Dilip, the learned counsel for the respondents, are heard for final disposal. It remains undisputed that the petitioners, who are the recipients of certain amounts from Indian entities, cannot be subject to assessment if the Division Bench’s order dated 14.07.2023 prevails. However, Sri M.Dilip submits that the order dated - 8 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 14.07.2023 has been called in question by the Revenue before the Hon’ble Supreme Court, and therefore this Court, may not make any observation on the merits of the petitioners’ grounds as against the lack of opportunity or service of due notices. Sri Kamal Sawhney, in rejoinder, submits that in the unlikely event of the Revenue succeeding in its challenge against the Division Bench’s order dated 14.07.2023, the petitioners must be reserved liberty to seek revival of these petitions if these petitions stand disposed of in the light of the Division Bench’s order dated 14.07.2023 and the later disposal of the other similar petitions. These submissions are considered, and this Court is of the considered view that the petitions must stand disposed of quashing the impugned assessment orders as also the penalty orders but with liberty to the petitioners to seek revival of these petitions subject to the outcome of the challenge by - 9 - NC: 2023:KHC:39250 WP No. 24310 of 2022 C/W WP No. 24280 of 2022 WP No. 24346 of 2022 WP No. 24349 of 2022 the Revenue before the Hon’ble Supreme Court as against the Division Bench’s order dated 14.07.2023 in ITA No.160/2015 and other matters as certain other petitioner’s specific grounds are urged. The petitions stand disposed of. Sd/- JUDGE SA ct:sr "