Bombay High Court
Sulzer Pumps India Private Limited vs Dy. Commissioner Of Income-Tax Circle - ... on 27 October, 2021
Bench: K.R. Shriram, Amit B. Borkar
Digitally
1/3 936-WPL 15811-2021.doc
signed by
PURTI
PURTI PRASAD
PRASAD PARAB
PARAB Date:
2021.10.29 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
18:00:11
+0530
WRIT PETITION (L) NO. 15811 OF 2021
Sulzer Pumps India Private Limited ....Petitioner
V/s.
Dy. Commissioner of Income Tax
Circle-15(3) (2) and Ors. ...Respondents
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Mr. S. Sriram i/b Mr. Sriram Sridharan for Petitioner.
Mr. Suresh Kumar for Respondents.
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CORAM : K.R. SHRIRAM &
AMIT B. BORKAR, JJ.
DATED : 27th OCTOBER 2021 P.C. :
1. Petitioner is impugning the Assessment Order dated 28 th June, 2021 passed by Respondent No.2 under Section 143 (3) read with Section 144C (3) read with Section 144 B of the Income Tax Act, 1961 (the Act) for the Assessment Year 2017-18 and the consequential Notice of Demand and Show Cause Notice for penalty both dated 28 th June, 2021 issued under Section 156 and 270 A respectively of the Act.
2. Petitioner's case is that Section 144C (2) of the Act, inter alia, requires assessee to choose to file reference before the Dispute Resolution Panel (DRP) to file such objection before DRP within 30 days from the receipt of Draft Assessment Order. The section also requires assessee to file a copy of the reference with the Assessing Officer within the time limit Purti Parab 2/3 936-WPL 15811-2021.doc prescribed. Section 144C (4) of the Act requires Assessing Officer to pass a final order within one month from the end of the month in which the period of filing of objections before DRP and Assessing Officer expires.
3. According to petitioner though Section 144C of the Act requires petitioner to communicate the reference filed it before the DRP to the Assessing Officer, petitioner was under a reasonable belief that, with the assessments being faceless and completely electronic, the reference filed by it would automatically communicated to Respondent No.2 by Respondent No.5 which is the DRP. Unfortunately, petitioner's belief was not correct and the Assessing Officer not being aware of petitioner having filed reference before DRP, after expiry of prescribed period of 30 days proceeded to pass the Assessment Order dated 28th June, 2021 which is impugned in this petition.
4. The reference before DRP is still pending. It is also not disputed that petitioner had filed to directly communicate the reference to DRP to the Assessing Officer.
5. We have considered the petition, reply, rejoinder, sur-rejoinder and sur-sur-rejoinder and also heard Mr. S. Sriram and Mr. Suresh Kumar.
6. In our view since petitioner had already filed a reference raising his objections to the DRP and Section 144C (4) of the Act requires the Purti Parab 3/3 936-WPL 15811-2021.doc Assessing Officer to pass the final order including the view expressed by the DRP, we will be justified in setting aside the order of the Assessing Officer dated 28th June, 2021 which is impugned in this petition. We would also observe that the Assessing Officer cannot be faulted for passing the impugned order. At the same time, the Assessing Officer will also have benefit of considering the views of DRP while passing a fresh Assessment Order.
7. Accordingly, petition is allowed in terms of prayer clause "a"
which reads as under :-
a. That this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the Petitioner's case and after examining the legality and validity thereof quash and set aside :
(i) the impugned assessment order dated 28th June 2021 passed by Respondent No.2 under section 143(3) r.w.s. 144C(3) read with section 144B of the Act for the AY 2017-18 (Exhibit "R") ;
(ii) the notice of demand dated 28th June 2021 issued under section 156 of the Act for AY 2017-18 (Exhibit "S") ;
(iii) the show cause penalty notice dated 28 th June 2021 issued under section 270A of the Act for AY 2017-18 (Exhibit "T")
8. The Assessing Officer shall take further steps in the matter after the DRP passes its order on the reference filed by petitioner in accordance with law.
9. Petition stands disposed.
(AMIT B. BORKAR, J.) (K.R. SHRIRAM, J.) Purti Parab