Del HC directs fresh adjudication in a case involving mixed question of fact and law, as it found relevant submissions were not considered by AO

Delhi High Court

Delhi High Court: A Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ. disposed the petition and directed fresh adjudication as none of the submissions and contentions was considered by the Assessing Officer.

The instant writ petition was filed challenging the impugned assessment order passed for the Assessment Year 2016-17 under Section 147 read with Sections 144 & 144B of the Income Tax Act, 1961 (hereinafter ‘IT Act’) as well as demand notice issued under Section 156 imposing a demand of Rs 8, 58, 76,140.

Counsel for the petitioner submitted that the notice was issued by a non jurisdictional assessing officer to a non-existent entity. It was further submitted that the jurisdictional assessing officer was duly intimated much before the assessing officer illegitimately initiated the impugned reassessment proceedings.

It was further submitted that Gambro India has ceased to exist with effect from 01-04-2015, it neither has a separate existence nor has any audited financials and thus no income to be assessed separately for the relevant Financial Year (FY) 2015-16. The return of income has already been filed by the petitioner and is being assessed in Delhi by Respondent 3 and re assessment proceedings under Section 148 IT Act, are also pending before respondent Thus, a second and separate reassessment proceeding for the relevant FY vide the impugned notice and impugned order against a non-existent company, Gambro India, is void ab initio.

The Court observed that none of the aforesaid submissions and contentions has been considered by the Assessing Officer. Since in the present case, the issue of jurisdiction is a mixed question of fact and law, this Court is of the view that it is necessary that the Assessing Officer gives its opinion on the said issue.

The Court thus directed the assessing officer ‘to consider the aforesaid submissions and contentions advanced by the parties as well as the reply dated 29-03-2022 filed by the Petitioner and pass a fresh reasoned order in accordance with law within twelve weeks.” [Baxter India Private Limited Gambro India Private Limited v. Additional Income Tax Officer National Faceless Assessment Centre, W.P. (C) 8699 of 2022, decided on 31-05-2022]


Appearances:

For petitioners: Mr Kamal Sawhney, Mr Prashant Meharchndani, Mr Arun Bhadauria, Mr. Nikhil Agarwal and Mr Nishank Vashistha

For respondents: Mr Zoheb Hossain, Mr Vipul Agarwal and Mr Parth Semwal

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