Delhi High Court - Orders
M/S Huawei Telecommunications (India) ... vs Assistant Commissioner Of Income Tax, ... on 12 December, 2023
$~56, 57, 58, 60 & 61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15948/2023 & C.M.Nos.64222-64223/2023
M/S HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY
PVT. LTD. ..... Petitioner
Through: Mr.Arvind Datar and Mr.Tarun
Gulati, Sr.Advocates with Mr.Kishore
Kunal, Ms.Ankita Prakash and
Mr.Mahesh Singh, Advocates.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL
CIRCLE-2, DELHI & ANR. ..... Respondent
Through: Mr.Sanjeev Menon, Advocate for
Mr.Zoheb Hossain, senior standing
counsel for Revenue.
+ W.P.(C) 15957/2023 & C.M.Nos.64236-64237/2023
M/S HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY
PVT. LTD. ..... Petitioner
Through: Mr.Arvind Datar and Mr.Tarun
Gulati, Sr.Advocates with Mr.Kishore
Kunal, Ms.Ankita Prakash and
Mr.Mahesh Singh, Advocates.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL
CIRCLE-2, DELHI & ANR. ..... Respondents
Through: Mr.Sanjeev Menon, Advocate for
Mr.Zoheb Hossain, senior standing
counsel for Revenue.
+ W.P.(C) 15958/2023 & C.M.Nos.64238-64239/2023
M/S HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY
PVT. LTD. ..... Petitioner
Through: Mr.Arvind Datar and Mr.Tarun
Gulati, Sr.Advocates with Mr.Kishore
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 14/12/2023 at 01:13:57
Kunal, Ms.Ankita Prakash and
Mr.Mahesh Singh, Advocates.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL
CIRCLE-2, DELHI & ANR. ..... Respondents
Through: Mr.Sanjeev Menon, Advocate for
Mr.Zoheb Hossain, senior standing
counsel for Revenue.
+ W.P.(C) 15970/2023 & C.M.Nos.64257-64258/2023
M/S HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY
PVT. LTD. ..... Petitioner
Through: Mr.Arvind Datar and Mr.Tarun
Gulati, Sr.Advocates with Mr.Kishore
Kunal, Ms.Ankita Prakash and
Mr.Mahesh Singh, Advocates.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL
CIRCLE-2, DELHI & ANR. ..... Respondents
Through: Mr.Sanjeev Menon, Advocate for
Mr.Zoheb Hossain, senior standing
counsel for Revenue.
+ W.P.(C) 15972/2023 & C.M.Nos.64261-64262/2023
M/S HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY
PVT. LTD. ..... Petitioner
Through: Mr.Arvind Datar and Mr.Tarun
Gulati, Sr.Advocates with Mr.Kishore
Kunal, Ms.Ankita Prakash and
Mr.Mahesh Singh, Advocates.
versus
ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL
CIRCLE-2, DELHI & ANR. ..... Respondents
Through: Mr.Sanjeev Menon, Advocate for
Mr.Zoheb Hossain, senior standing
counsel for Revenue.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 14/12/2023 at 01:13:57
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 12.12.2023
1. Present writ petitions have been filed challenging the reassessment notices dated 31st March, 2023 issued under Section 148 of the Income Tax Act, 1961 ['the Act'] for the assessment years 2012-13 and 2015-16 to 2018-19 pursuant to a search and seizure operation conducted on the petitioner on 15th February, 2022 under Section 132 of the Act as well as the notices dated 25th May, 2023 issued under Section 143(2) of the Act. Petitioner also challenges the constitutional validity of Explanation 2 to Section 148 of the Act and the proviso to Section 148A of the Act.
2. Learned senior counsels for the petitioner refer to the order of this Court passed in Oppo Mobiles India Private Limited vs. Union of India & Anr., W.P.(C) No.334/2023 dated 13th January, 2023, wherein it has been held as under:-
"1. The above-captioned matters concern Assessment Years (AYs) 2016- 17 (in W.P.(C)334/2023), 2014-15 (in W.P.(C)367/2023) and 2015-16 (in W.P.(C)366/2023).
2. Mr Kamal Sawhney, who appears on behalf of the petitioner in the above-captioned matters, says that there are several flaws in the commencement of assessment/reassessment proceedings against the petitioner. Broadly, Mr Sawhney's submission can be paraphrased as follows:
(i) First, the concerned specified authority, as defined in Section 151(ii) of the Income Tax Act, 1961 [in short, "Act"] has not approved the impugned action.
(ii) Second, since the notice had been issued beyond the period of three years, the prerequisites for triggering the assessment/reassessment proceedings, as provided under Section 149(1)(b) of the Act were required to be fulfilled.
(iii) Third, as the assessment/reassessment proceedings are This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/12/2023 at 01:13:58 pivoted on a search action carried out by the respondent/revenue in exercise of powers under Section 132 of the Act, it had to have the approval of the authority specified under Section 151(ii) of the Act and to provide, inter alia, the relevant information/material to the petitioner as also the quantum of the escaped income, which, according to the respondent/revenue would be chargeable to tax.
3. Submissions have been made in the context of the fact that because the assessment/reassessment proceedings were triggered on account of a search action, the deeming fiction created by explanation 2 appended to Section 148, is limited to three assessment years.
4. Mr Abhishek Maratha, who appears on behalf of the respondent/revenue in the above-captioned matters, on the other hand, submits that assessment/reassessment proceedings, which were commenced based on a search action carried out in exercise of power under Section 132 of the Act, it side steps the entire procedure which is engrafted in Section 148A of the Act and therefore, the authorities specified in Section 151(ii) of the Act are not the authorities which need to grant approval for commencement of the impugned action.
5. This argument is also made by Mr Maratha with respect to provisions of Section 147 of the Act.
6. In our view, the matter requires examination as the notice issued under Section 148 of the Act in each of these cases, which is dated 06.09.2022, does not, inter alia, advert to what is the escaped income.
7. Issue notice. 7.1 Mr Maratha, accepts notice on behalf of the respondent/revenue.
8. Counter-affidavit will be filed within next four weeks. 8.1 Rejoinder thereto, if any, will be filed before the next date of hearing.
9. List the matters on 21.08.2023.
10. In the meanwhile, although the Assessing Officer will have liberty to continue with the assessment proceedings, however, if any order is passed which is adverse to the interest of the petitioner, it will not be given effect to till further directions of this court".
3. In view of the aforesaid order, issue notice. Mr. Sanjeev Menon, Advocate accepts notice on behalf of the respondent-revenue. He states that the petitioner's objections are being considered by the Assessing Officer and an order shall be passed shortly in accordance with the judgment of the Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO, (2003) 259 ITR 19 (SC).
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/12/2023 at 01:13:58
4. Let counter affidavits be filed within six weeks. Rejoinder affidavits, if any, be filed before the next date of hearing.
5. List on 15th March, 2024 along with W.P.(C) No.334/2023.
6. In the meanwhile, although the Assessing Officer will have liberty to continue with the assessment proceedings, however, if any order is passed which is adverse to the interest of the petitioner, it shall not be given effect to, till further directions of this Court.
ACTING CHIEF JUSTICE MINI PUSHKARNA, J DECEMBER 12, 2023 KA This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 14/12/2023 at 01:13:58