TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 1205
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.... 04/10/2022. Since, facts germane to the issue in all the three appeals are identical, these appeals are taken up together for adjudication and are decided by this common order. 2. Appeal of the Revenue in ITA No. 88/Mum/2023 for assessment year 2011-12 is taken as the lead case, hence, the facts are narrated from the said appeal. The department in its appeal has assailed the findings of CIT(A) on following grounds: " 1. Whether on the facts and circumstances of the case and in law, Ld. CIT(A) was correct in holding that order u/s 163 is required to be passed even when assessee (appellant company) has not replied to the show-cause notice for the same. 2. Whether on the facts and circumstances of the case and in law, Ld. CIT(A) was cor....
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..... Despite the fact that the Assessing Officer was aware of dissolution of MVL, he issued notice u/s. 143(2) of the Act on 25/10/2018 in the name of MVL, a non-existing entity. Thereafter, the Assessing Officer issued summons u/s.131 of the Act on 07/12/2018 to Keystone Realtors Pvt. Ltd. ( in short 'KRPL'), wherein the Assessing Officer inter-alia show caused KRPL/respondent to explain as to why it should not be treated as representative assessee u/s. 163 of the Act. The respondent/KRPL gave a detailed reply to summons on 17/12/2018. Thereafter, the Assessing Officer issued show cause notice u/s. 163 of the Act on 21/12/2018 to treat KRPL as agent of MVL for the assessment year 2011-12, 2012-13 and 2013-14. The said notice was received by t....
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.... failed to respond to the notice issued u/s. 163 of the Act . Since, no reply was received by the Assessing Officer in response to the show cause notice issued u/s.163 of the Act, the Assessing Officer had no reason to believe that the assessee is aggrieved against treating it as representative assessee of MVL. 5. We have heard the submissions made by rival sides and have examined the orders of authorities below. We have also considered the decisions on which the ld. Authorized Representative for the assessee /respondent has placed reliance. 6. The issue before us is in narrow encompass i.e. Whether the Assessing Officer without passing order u/s. 163 of the Act, can treat KRPL/respondent as representative assessee of MVL while completing....
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....ent, includes any person in India- (a) who is employed by or on behalf of the non-resident; or (b) who has any business connection with the non-resident; or (c) from or through whom the non-resident is in receipt of any income, whether directly or indirectly; or (d) who is the trustee of the non-resident; and includes also any other person who, whether a resident or non-resident, has acquired by means of a transfer, a capital asset in India: Provided that a broker in India who, in respect of any transactions, does not deal directly with or on behalf of a non-resident principal but deals with or through a non- resident broker shall not be deemed to be an agent under this section in respect of such transactions, if the follo....
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....) of section246(1) of the Act. Thus, from conjoint reading of section 163 and section 246(1)(d) of the Act, it is unambiguously clear that before treating any person as agent a separate order has to be passed u/s. 163 of the Act, after affording opportunity of hearing to such a person on whom a liability in respect of a Non-resident is to be fastened. 9. In the instance case, we find that though the Assessing Officer has issued show cause notice u/s. 163 of the Act to KRPL to treat it as representative assessee of MVL for the Assessment Years 2011-12, 2012-13 and 2013-14, but no order u/s. 163 of the Act has been passed by the Assessing Officer holding KRPL as representative assessee of MVL. The assessment order passed in the name of KRPL ....
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....he Assessing Officer on 18/10/2018, yet the Assessing Officer issued notice u/s. 143(2) of the Act in the name of MVL, a non-existing entity. No notice u/s. 143(2) of the Act was served in the name of KRPL. The notice u/s. 143(2) of the Act in the name of a non-existing entity itself makes the assessment null and void. Further, the assessment made in the name of KRPL as representative assessee of MVL without a separate order u/s. 163 of the Act, makes the assessment null and void. 13. Thus, for the reasons recorded above, we hold the assessment order unsustainable. We find no infirmity in the impugned order, hence, the same is upheld and appeal of the Revenue is dismissed. ITA NO.89/MUM/2023(A.Y. 2012-13) & ITA NO.90/MUM/2023(A.Y.2013-1....