TMI Blog2022 (6) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... ent what according to him his objections qua notices in this regard. The details of the trajectory together with dates have already been captured supra elsewhere in this order where there is a narrative capturing factual matrix and the trajectory the matter has taken. This court reminds itself of a judgment of a Constitution Bench of Hon'ble Supreme Court in the celebrated Padma Sundara Rao [ 2002 (3) TMI 44 - SUPREME COURT] case, wherein the manner of referring to a case law (precedent) and as to how the fact setting even owing to minor differences can make a world of difference in a case as a precedent has been dealt with. Though we are concerned with the issue as to whether reopening order can be assailed after assessment, on a demurer even if Kelvinator principle is applied [ 2002 (4) TMI 37 - DELHI HIGH COURT] (in Kelvinator , facts are not available), this Court interfering in writ jurisdiction will arise only when foundational fact for reopening itself is unacceptable. In this case, prima facie 'lack of full disclosure' ingredients is present as DRP has examined all three aspects, namely (I) Transfer Pricing (ii) Railway Siding Charge (whether ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responding to this. Equally it is open to the Department to issue the additional notice giving particulars of the immovable property. This course will balance the rights of the writ petitioner and interest of the Revenue. In the light of the discussion and dispositive reasoning set out supra, the following order is passed: a) the impugned assessment order made by the first respondent is set aside on the grounds of lack of opportunity / specificity; b) though obvious, the basis of the above limb is this Court has not expressed any view or opinion on the merits of the matter; c) the Department shall now proceed from the stage of notice under Section 142(1) of the IT Act dated 10.08.2021 (scanned and reproduced supra); d) When the Department proceeds from the 10.08.2021 notice under Section 142(1), it is open to the respondents to issue an additional notice giving more details with specificity, if so advised; e) all questions are left open and therefore, the writ petitioner's purported objections and the writ petitioner's contentions raised in the captioned writ petition can well be raised in response to the 142(1) notice; - W.P(MD)No.1014 of 2022 And W.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions, a summation of which is as follows: a) there is no new material for issue of Section 148 notice; b) 142(1) notices do not give details of the immovable property alleged to have purchased by the writ petitioner, which is one of the issues touching upon the proposed variation; c) the time granted vide SCN dated 13.09.2021 is too short as it is barely three working days and the impugned order has been made on the very next date. 5. In response to the above submissions, learned Revenue Counsel on instructions made submissions, a summation of which is as follows: a) the issue touching upon new material and Section 148 notice cannot be assailed by putting the clock back post assessment order which itself is now under challenge in the case on hand. Doosan Bobcat India Private Limited Vs. Deputy Commissioner of Income Tax and others was relied on for this proposition; b) the details have to emanate from the assessee as the Section 142 (1) notice clearly calls upon the assessee to give notice; c) the SCN giving only three days notice is not of relevance as it was preceded by two notices, one dated 10.08.2021 and another dated 25.08.2021 and therefore, suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is another reason why this Court is of the view that this is not a case where the Kelvinator principle would help the writ petitioner and that the other reason is the order which this Court now proposes to make. 9. To put it differently, the three case laws relied on by writ petitioner do not come to the aid of the writ petitioner owing to the facts of this case and the trajectory the assessment proceedings have taken. The reason is, in the case on hand, we are more concerned with whether purported lack of reasons for reopening can be raised more so as a ground in support of a challenge to assessment after the assessee has fully participated in the assessment proceedings post reopening, invited an assessment order and has challenged the same, i.e., impugned assessment order. In this regard Doosan Bobcat India Private Ltd. case and Orchid Pharma Ltd., cases which are Madras High Court judgments are those in which the Court has addressed itself to the specific question as to whether alleged insufficient grounds for reopening an assessment can be raised post assessment (post reopening) and answered the same in the negative. 10. Therefore, this Court is of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied (in Kelvinator , facts are not available), this Court interfering in writ jurisdiction will arise only when foundational fact for reopening itself is unacceptable. In this case, prima facie 'lack of full disclosure' ingredients is present as DRP has examined all three aspects, namely (I) Transfer Pricing (ii) Railway Siding Charge (whether capital or revenue expenditure) and (iii) interest from debenture, tax impact of same and after examining all three aspects has held in favour of assessee only with regard to Transfer Pricing. This cannot be completely ignored. This is in the light of Padma Sundara Rao principle. To be noted, Padma Sundara Rao case was rendered by Hon'ble Constitution Bench and it has been elevated from the status of ratio to that of declaration of law. 14. The next point turns on the assessee seeking details. Learned Senior Counsel pointed out that the Department has not even given the details of the immovable property said to have been purchased by the writ petitioner which is now going to be made subject matter of Section 80IA of IT Act addition /variation. The answer of the learned Revenue Counsel that these details should emanate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned assessment order i.e., order dated 17.09.2021 bearing reference DIN: ITBA/AST/S/147/2021-22/1035666801(1) made by the first respondent is set aside on the grounds of lack of opportunity / specificity; b) though obvious, the basis of the above limb is this Court has not expressed any view or opinion on the merits of the matter; c) the Department shall now proceed from the stage of notice under Section 142(1) of the IT Act dated 10.08.2021 (scanned and reproduced supra); d) When the Department proceeds from the 10.08.2021 notice under Section 142(1), it is open to the respondents to issue an additional notice giving more details with specificity, if so advised; e) all questions are left open and therefore, the writ petitioner's purported objections and the writ petitioner's contentions raised in the captioned writ petition can well be raised in response to the 142(1) notice; f) the above exercise shall be commenced forthwith and the same shall be concluded as expeditiously as the business of the first respondent would permit and in any event within three months from today i.e, on or before 25.04.2022. 19. Captioned main writ petition is disposed of wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
