2022 (4) TMI 461 - HC - Income Tax

Court examines notice validity and objections, allows revenue challenge. Assessment pending enforcement. Next hearing 8th August 2022.

BANYAN REAL ESTATE FUND MAURITIUS Versus ASSTT. COMMISSIONER OF INCOME TAX & ANR.

The Court acknowledged conflicting contentions between the petitioner and the revenue regarding the validity of the notice under Section 148 and the order ... Reopening of assessment u/s 147 - proof of suppression of facts - HELD THAT:- There has been suppression of facts by the petitioner inasmuch as it was not disclosed during the original assessment proceeding as well as in the replies to the notice under Section 142(1) and in the writ petition that Mr. Gaurav Dalmia was a common director in Banyan Real Estate Fund, Mauritius, Landmark Hitech Development Pvt. Ltd. and Landmark Realtech Pvt. Ltd. It is the case of the Revenue that the petitioner’s company is owned and controlled by a US Company and consequently the sale of shares by the petitioner to Landmark Realtech Pvt. Ltd. is not entitled to the benefit of the Indo-Mauritius DTAA. This Court is of the view that the matter requires detailed examination. Let a counter affidavit be filed within four weeks. The respondents are permitted to take the plea of maintainability of the writ petition in its counter affidavit. Rejoinder affidavit, if any, be filed before the next date of hearing. Issues involved:Challenge to notice under Section 148 of the Income Tax Act, 1961 and order disposing of objections for Assessment Year 2014-15.Analysis:The petitioner, a senior advocate, challenged a notice issued under Section 148 of the Income Tax Act, 1961, and the order disposing of objections for the Assessment Year 2014-15. The petitioner contended that the impugned order was based on false statements, including the assertion that the case of the assessee was never selected for scrutiny, and the information of sale consideration was not available during the assessment proceedings. The petitioner argued that this was the first time an opinion was being formed based on relevant facts and material. On the other hand, the respondents, representing the revenue, alleged that there was a suppression of facts by the petitioner, particularly regarding the common directorship of Mr. Gaurav Dalmia in various companies. The Revenue contended that the petitioner's company, owned and controlled by a US Company, was not entitled to the benefit of the Indo-Mauritius DTAA due to the sale of shares to Landmark Realtech Pvt. Ltd.The Court acknowledged the need for a detailed examination of the matter and directed the respondents to file a counter affidavit within four weeks. The respondents were allowed to challenge the maintainability of the writ petition in their counter affidavit. The Court also permitted the Assessing Officer to pass the assessment order; however, it specified that the order should not be given effect to until further orders were passed by the Court. The case was listed for the next hearing on 8th August 2022.In conclusion, the judgment highlighted the conflicting contentions between the petitioner and the respondents regarding the validity of the notice under Section 148 and the order disposing of objections for the Assessment Year 2014-15. The Court emphasized the need for a thorough examination of the facts and directed the parties to submit their arguments through affidavits. The decision to withhold the effect of the assessment order until further court orders demonstrated the cautious approach taken by the Court in this matter.