Full Text
W.P.(C) 17581/2022
DLF HOME DEVELOPERS LTD ..... Petitioner
Through: Ms Kavita Jha and Mr Akash Shukla, Advs.
Through: Mr Sanjeev Menon, Standing Counsel.
HON'BLE MR. JUSTICE GIRISH KATHPALIA [Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL):
JUDGMENT
1. The record shows that on 22.12.2022, when the writ petition had come up for hearing, we had, after hearing learned counsel for the parties, recorded the broad contours of the case. For convenience, the relevant parts of the said order are extracted hereafter:
6. Prima facie, according to us, if Section 170A of the Act, which is a non-obstante clause, obliges the successor, in the event of a business reorganization, to file a modified return in the form and manner prescribed, [qua which CBDT has granted time up until 31.03.2023], the assessing officer cannot proceed with the assessment, based on a pre-merger return filed by the petitioner.
7. Therefore, in order to avoid further complications, we are inclined to direct the assessing officer to stay his/her hands and not continue with the assessment proceedings till such point in time when the period for filing modified return in the prescribed form and manner reaches the end date i.e., 31.03.2023.
8. Since this matter involves interpretation of Section 170A of the Act, we would like Mr Zoheb Hossain, who appears on behalf of the respondents/revenue, to file a counter-affidavit and assist us in the matter and, perhaps, also request the CBDT to look into the difficulties that the assessees, who are similarly circumstanced, may face.
9. Accordingly, issue notice to the respondents/revenue. 9.[1] Mr Zoheb Hossain accepts notice on behalf of the respondents/revenue.
10. Counter-affidavit will be filed within the next three weeks. 10.[1] Rejoinder thereto, if any, be filed before the next date of hearing.
11. List the matter on 06.04.2023.”
2. Ms Kavita Jha, learned counsel who appears on behalf of the petitioner, informs us that a modified return was filed on 30.03.2023.
3. It is Ms Jha’s contention that the modified return can now be subjected to assessment by the concerned Assessing officer (AO). 3.[1] That this option is the correct course of action is sought to be supported by referring to paragraph 19 of the counter-affidavit filed on behalf of the respondents/revenue. 3.[2] Mr Sanjeev Menon, learned standing counsel, who appears on behalf of the respondents/revenue, affirms this position.
4. For convenience, paragraph 19 of the counter-affidavit is extracted hereafter:
5. Having regard to the position taken by the respondents/revenue and given the fact that the modified return, as noticed above, has already been filed by the petitioner, we are inclined to dispose of the writ petition with the following directions:
(i) The AO will have liberty to carry out scrutiny assessment;
(ii) The time taken between the date when the proceedings were stayed and up until today will stand excluded;
(iii) In terms of the first proviso appended to Explanation 1 of Section 153 of the Income Tax Act, 1961 [in short, “Act”], the AO will have available to him 60 days for completion of assessment proceedings, which will commence from the date of receipt of a copy of the order passed today, and
(iv) The assessment proceedings will be carried out having regard to the modified return filed by the petitioner.
RAJIV SHAKDHER, J GIRISH KATHPALIA, J OCTOBER 19, 2023 aj Click here to check corrigendum, if any