Delhi High Court - Orders
Trina Solar Energy Development Pte ... vs Assistant Commissioner Of Income Tax & ... on 27 November, 2024
Author: Vibhu Bakhru
Bench: Vibhu Bakhru, Swarana Kanta Sharma
$~72, 73 and 83
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 16279/2024
+ W.P.(C) 16368/2024
+ W.P.(C) 16408/2024
TRINA SOLAR ENERGY DEVELOPMENT PTE LIMITED
.....Petitioner
Through: Mr. Salil Kapoor, Mr.
Kumarmanglam Vijay, Ms. Ananya
Kapoor, Ms. Harshita Agrawal, Mr.
Divyam Mittal & Mr. Utkarsa Kumar
Gupta, Advocates.
versus
ASSISTANT COMMISSIONER OF INCOME TAX & ORS.
.....Respondents
Through: Mr. Anant Mann, JSC for Mr. Ruchir
Bhatia, SSC for R-1.
Mr. Rajkumar Yadav, Advocate for
R-4.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
ORDER
% 27.11.2024 W.P.(C) 16279/2024, W.P.(C) 16368/2024 & W.P.(C) 16408/2024
1. The petitioner has filed the present petitions, inter-alia, praying as under:
"A. Issue a writ of and/or order and or directions in the nature of certiorari or any other appropriate writ, order or direction quashing impugned notice dated 31.08.2024 issued under Section 148 of the Act by the 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 03/12/2024 at 21:28:37 Respondent and the proceedings initiated pursuant thereto;
B. Issue a writ of and/or order and or directions in the nature of certiorari or any other appropriate writ, order or direction to declare Clause (iii) and (iv) of the Explanation 2 to the Section 148 of the Act as being violative of Article 14 of the Constitution of India to the extent to which it treats the search person and non-search person on equal footing;
C. Issue a writ of and/or order and/or direction in the nature of Prohibition commanding Respondent to forebear from giving effect to and/or taking any step whatsoever pursuant to and/or in furtherance of the said purported notice under Section 148 of the Act and/or in any proceedings initiated thereunder for the AY 2018-19, and grant stay on the assessment proceedings;
D. Issue any other Writ, order or Direction which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case.
E. To dispense with from filing certified copies of Annexures."
2. The petitioner impugns a notice issued under Section 148 of the Income Tax Act, 1961 (hereafter the Act), which is premised on a search conducted by the petitioners, on the premises of the petitioner‟s Indian subsidiary.
3. Mr. Kapoor, the learned counsel appearing for the petitioner submits that since the assessee is not a searched person, and his assessments are sought to be reopened on the basis of search conducted on another person, he cannot be put in a position worse than that of the searched person. He submits that if the assessment of the searched person is not reopened, the assessments of the non-searched person cannot be reopened. He also submits 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 03/12/2024 at 21:28:37 that the Clauses 3 and 4 of the Explanation 2 to Section 148 of the Act are violative of Article 14 of the Constitution of India, inasmuch as they treat a searched person and a non-searched person on an equal footing.
4. Plainly, the said contentions are insubstantial. The reassessment on a non-searched person, based on incriminating material found during the search conducted on another person, is duly authorized by law. Closed assessments cannot be opened whimsically or in an arbitrary manner. They necessarily have to be premised on incriminating material. Thus, if incriminating material found during search belongs to a non-searched person or contains information pertaining to such person, the assessments of such non-searched person are required to be reopened in accordance with law. This is subject to other conditions as statutorily stipulated being satisfied. The provision in this regard is neither arbitrary nor offends the equality clause of Article 14 of the Constitution of India. The contentions advanced are misconceived and unfounded.
5. It is contended by Mr. Kapoor that the notices in the present case relate to assessment years, which are beyond six years from the end of the relevant assessment years, and therefore, the fourth proviso to Section 153A of the Act is required to be satisfied. He submits that in this case, the Assessing Officer (AO) has not found any income escaping assessment, which is available in the form of an „asset‟. He submits that in absence of any asset representing income that escaped assessment, the concluded assessments for a period that is beyond six years cannot be reopened.
6. Issue notice.
7. The learned counsel for the respondent accepts notice and seeks time to take instructions and if necessary, file a reply.
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 03/12/2024 at 21:28:37
8. List on 12.02.2025.
CM APPL. 68576/2024 (Stay) in W.P.(C) 16279/2024 CM APPL. 69045/2024 (Stay) in W.P.(C) 16368/2024 CM APPL. 69118/2024 (Stay) in W.P.(C) 16408/2024
9. It is stated that the petitioner seeks stay of the assessment proceedings. However, this is stoutly contested by the learned counsel for the Revenue that a large amount of incriminating material was found during the search and the same would require to be processed.
10. In view of the above, we do not consider it apposite to interdict the proceedings in the present case. We, however, clarify that the question as to the fate of the reassessment proceedings or any order passed pursuant thereto, would also be considered at the stage of final disposal of the present petitions.
11. The stay applications are dismissed with the aforesaid observations.
VIBHU BAKHRU, J SWARANA KANTA SHARMA, J NOVEMBER 27, 2024/at Click here to check corrigendum, if any 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 03/12/2024 at 21:28:38