Full Text
HIGH COURT OF DELHI
Date of Decision: 25.07.2023
CAIRNHILL CGPE LIMITED ..... Petitioner
Through: Mr Percy J. Pardiwala, Senior Advocate with Mr Vishal Kalra and
Ms Snigdha Gautam, Advocates.
TAXATION)-2, NEW DELHI ..... Respondent
Through: Mr Prashant Meherchandani, Senior Standing Counsel.
CAIRNHILL CIPEF LIMITED ..... Petitioner
Through: Mr Percy J. Pardiwala, Senior Advocate with Mr Vishal Kalra and
Ms Snigdha Gautam, Advocates.
TAXATION)-2, NEW DELHI ..... Respondent
Through: Mr Ruchir Bhatia, Senior Standing Counsel with Ms Deeksha Gupta, Advocate.
HON'BLE MR JUSTICE GIRISH KATHPALIA [Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J.: (ORAL)
JUDGMENT
1. These writ petitions concern Assessment Year (AY) 2016-17.
2. Via these writ petitions, the petitioners seek to assail the notice dated 26.03.2021 (which apparently has not been served, as yet) and the order dated 27.03.2021 issued under Section 163 of the Income Tax Act, 1961 [in short, “the Act”].
3. Broadly, these petitions have been filed in the backdrop of the following facts and circumstances. 3.[1] The petitioners appear to have purchased shares of an entity going by the name Mankind Pharmaceuticals Limited [in short, “Mankind”]. The subject share, it appears, were purchased of shares was made from another entity, namely Monet Limited [in short, “Monet”], which is incorporated in Mauritius. 3.[2] The number of shares purchased by the petitioners, as per the record, was 21,57,534. We are told that the shares purchased from Monet are subject matter of the Share Purchase Agreement dated 31.03.2015. 3.[3] We are also told that an assessment order dated 12.12.2018 was passed qua Monet under Section 143(2) of the Act. 3.[4] It appears that Monet had resorted to the provisions of the Article 13(4) of the India-Mauritius Double Taxation Avoidance Agreement (DTAA), and thus claimed that it was not exigible to levy of tax. 3.[5] The Assessing Officer (AO) appears to have accepted this stand taken by Monet, and assessed it at the returned income. (See Annexure P-6, appended at Page 157 of the case file). 3.[6] Evidently, Monet was dissolved in and about 2018. 3.[5] Notice dated 25.03.2021 was issued under Section 263 of the Act, in so far as Monet was concerned. 3.[6] Since the respondent/revenue sought to treat the petitioner as the agent of Monet, the impugned notice dated 26.03.2021 was issued, as indicated above. 3.[7] Furthermore, as noticed right at the outset, an order under Section 163 was passed qua the petitioner on 27.03.2021.
4. The Commissioner of Income Tax (CIT) passed an order dated 31.03.2021, wherein he, inter alia, made the following crucial observations:
4.[1] Consequently, via this order, the CIT(A) cancelled the assessment order dated 12.12.2018, concerning Monet, directing the AO to carry out a de novo exercise. 4.[2] Pertinently, the petitioner was held to be jointly and severely liable qua the proceeding, having been held as the “representative assessee”.
5. The record shows that the petitioner carried the matter in appeal to the Income Tax Appellate Tribunal [in short, “the Tribunal”]. The Tribunal, via order dated 19.12.2022, allowed the appeal preferred by the writ petitioner.
6. While allowing the appeal, the Tribunal quashed the order issued under Section 163 of the Act, which is evident from the following extract:
7. Having regard to the operative directions issued by the Tribunal, according to us, these writ petitions would not lie, as obviously, the court cannot quash something, which has already been quashed by the Tribunal. 7.[1] However, in case the respondent/revenue were to prefer an appeal to this court, at that stage perhaps, the petitioners could seek liberty to take recourse to an appropriate measure, albeit in accordance with the law.
8. The writ petitions are disposed of, in the aforesaid terms.
(RAJIV SHAKDHER) JUDGE (GIRISH KATHPALIA)
JUDGE JULY 25, 2023 Click here to check corrigendum, if any