M/S TELEKOM MALAYSIA BERHAD V. UNION OF INDIA

WP/5914/2018

AI Insights

M/s. Telekom Malaysia Berhad, a Malaysian company, challenged a reassessment order issued by the Deputy Commissioner of Income Tax (International Taxation), Bangalore, which raised a demand of Rs.20,84,448 for the assessment year 2009-10. The petitioner alleged a breach of natural justice due to the non-service of statutory notices and lack of opportunity to contest the reassessment. The court examined the sequence of notices served to the petitioner and found that the petitioner had been adequately informed but failed to respond. The court dismissed the petition, highlighting the availability of appellate remedies under the Income Tax Act, which the petitioner did not pursue.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 678891 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 12-02-2018
• Assessment Year: misc
• Other Referred Cases: GKN Driveshafts (India) Ltd. vs. Income Tax Officer and Others (2003) 1 SCC 72
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: TUSHAR JARWAL
• Keywords: Foreign company; Income Tax; Legal representative; Natural Justice; Non-service of notice; PAN; Reassessment order
• Section: 148; 142(1); 246; 127; 253; 129; 260-A

Judgement Text

" 1/12 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 12th DAY OF FEBRUARY 2018 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.5914/2018 (T-IT) BETWEEN: M/S TELEKOM MALAYSIA BERHAD LEVEL 11, NORTH WING MENARA TM, JALAN PANTAI BAHARU 50672, KUALA LUMPUR MALAYSIA REP. BY ITS EXECUTIVE DIRECTOR MR. BAZIAN BINOSMAN. ... PETITIONER (By Mr. TUSHAR JARWAL, ADV., FOR Mr. C.K. NANDAKUMAR, ADV.,) AND: 1. UNION OF INDIA MINISTRY OF FINANCE THROUGH ITS SECRETARY NORTH BLOCK, NEW DELHI – 110001. 2. DEPUTY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) CIRCLE 2(1), BANGALORE BMTC BULDING ROOM No.440, 4TH FLOOR, 80 FEET ROAD KORAMANGALA, BANGALORE – 560095. 3. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION) BANGALORE BMTC BUILDING, 80, FEET ROAD KORAMANGALA 6TH BLOCK BANGALORE – 560095. ... RESPONDENTS Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 2/12 THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ASSESSMENT ORDER DATED 18.12.2017 (RECEIVED ON 03.01.2018 (ANNEXURE-F) AND THE DEMAND NOTICE DATED 18.12.2017 (ANNEXURE-G) AND QUASH THE SAID ORDER AND NOTICE & ETC., THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER Mr. Tushar Jarwal, Adv. for Mr. C.K. Nandakumar, Adv. for Petitioner 1. 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 petitioner- company. 2. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 3/12 the Respondent-Assessing Authority viz., non-service of Statutory Notice under Section 148 of the Act and non- grant of adequate opportunity to raise the objections to the reassessment proceedings undertaken for the said A.Y.2009-10. 3. 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:- “ 3. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 4/12 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”. 4. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 5/12 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. 5. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 6/12 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 petitioner- company was not aware of the pending proceedings in this regard with the Respondent-Assessing Authority. 6. 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. 7. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 7/12 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:-. “ 5. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 8/12 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. 6. 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”. 8. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 9/12 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. 9. 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. 10. 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 Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 10/12 have not been issued or served upon the petitioner- company. 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. 11. 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. Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 11/12 12. 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. 13. 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. Date of Order 12-02-2018 W.P.No.5914/2018 M/s. Telekom Malaysia Berhad Vs. Union of India & Ors. 12/12 14. The writ petition found to be devoid of merit and is liable to be dismissed and accordingly, it is dismissed. No costs. Sd/- JUDGE Srl. "