Bombay High Court
Bekaert Mukand Wire Industries Pvt. Ltd vs Additional / Joint / Deputy / Assistant ... on 17 September, 2021
Bench: K.R. Shriram, M.S. Karnik
1/3 458.WP-2153-2021.doc
Digitally
signed by
DIKSHA
DINESH
DIKSHA
DINESH
RANE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RANE Date:
2021.09.18
16:51:45
CIVIL APPELLATE JURISDICTION
+0530
WRIT PETITION NO.2153 OF 2021
Bekaert Mukand Wire Industries Pvt. Ltd. ....Petitioner
V/s.
Additional/Joint/Deputy/Assistant Commissioner
of Income Tax/Income-Tax Ofcer and ors. ....Respondents
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Mr. Percy Pardiwalla, Senior Advocate i/b. Mr. Sameer Dalal for petitioner.
Mr. Sham V. Walve for respondents.
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CORAM : K.R. SHRIRAM, & M.S. KARNIK, JJ DATED : 17th SEPTEMBER 2021 P.C. :
This petition is impugning an assessment order dated 19 th April, 2021 on the ground that the order has been passed without strictly complying with mandatory provisions prescribed under Section 144B of the Income Tax Act, 1961 (the said Act) and therefore, the order dated 19th April, 2021 impugned in this Petition is non-est.
2. Admittedly petitioner is an eligible assessee. Eligible assessee as per Explanation (m) to Section 144B says that it shall have the same meaning as assigned to in Clause (B) of sub- section (15) of Section 144C. Clause (B) of sub-section (15) of Section 144C defnes an "eligible assessee" as under :-
"(b) "eligible assessee" means, -
(i) any person in whose case the variation referred to
in sub-section (1) arises as a consequence of the order of the Transfer Pricing Ofcer passed under Diksha Rane 2/3 458.WP-2153-2021.doc sub-section (3) of section 92CA; and
(ii) any non-resident not being a company, or any foreign company."
3. Mr. Pardiwala submitted that in the case of an eligible assessee the mandatory provisions provided under Clause (xxvii) to (xxxii) of sub-section (1) of Section 144B of the said Act has to be strictly complied with. We agree with him. As held in SHL (India) Private Limited vs. Deputy Commissioner of Income Tax and others1 even provisions of Section 144C of the said Act are mandatory in nature. As we could understand from the afdavit-in-reply of one Bhushan Patil, DCIT, afrmed on 13 th September, 2021, non compliance with these provisions have not been denied. What is stated is that the matter be remanded to the fle of Assessing Ofcer for fresh aduudication.
4. Sub-section (9) of Section 144B provides that notwithstanding anything contained in any other provision of this Act, assessment made shall be non-est if such assessment is not made in accordance with the procedure laid down under Section 144B. It is an admitted position that the procedure laid down under Section 144B of the said Act has not been followed while passing the assessment order impugned in this Petition. Therefore, the assessment order dated 19th April, 2021 shall be non-est.
1. Writ Petition (L) No.11293/2021 dated 28/7/2021 (unreported).
Diksha Rane
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5. In the circumstances, the assessment order dated 19 th April, 2021 impugned in this Petition is quashed and set aside. The consequential demand notice and penalty notice also dated 19 th April, 2021 are also hereby quashed and set aside.
6. The Department may take such steps as advised in accordance with law.
7. We have not made any observation on the merits of the case.
8. Petition disposed.
( M.S. KARNIK, J.) (K.R. SHRIRAM, J.) Diksha Rane