A True Copy Of The Judgment Of The Hon'ble High Court Of Andhra Pradesh In Zuari Cement Limited v. The Assistant Commissioner Of Income-Tax, Circle 2(1), Tirupati (Ts-271-Hc-2013(Ap

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI TUESDAY, THE 14 DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944WP(C) NO. 28243 OF 2022 PETITIONER: GIGY ANTONYMUNDACKAL HOUSE, KOTHAMANGALAM PO ERNAKULAM - 686 673, KERALA, INDIA, REPRESENTED BY HIS POWER OF ATTORNEY, NITISH SHENOY BY ADVS.NITISH SATHESH SHENOYSUKUMAR NAINAN OOMMENSHERRY SAMUEL OOMMEN RESPONDENTS: 1INCOME-TAX OFFICER,CORPORATE RANGE - 2 CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI, PIN - 682018CORPORATE RANGE - 2 CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI, PIN - 682018 2JOINT COMMISSIONER OF INCOME-TAXCORPORATE RANGE - 2, CENTRAL REVENUE BUILDING, IS PRESSROAD, KOCHI, PIN - 682018CORPORATE RANGE - 2, CENTRAL REVENUE BUILDING, IS PRESSROAD, KOCHI, PIN - 682018 3ADDITIONAL COMMISSIONER OF INCOME-TAXNATIONAL FACELESS ASSESSMENT CENTRE, DELHINATIONAL FACELESS ASSESSMENT CENTRE, DELHI SRI. JOSE JOSEPH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAVI, J. -------------------------------------------- W.P.(C).No.28243 of 2022 --------------------------------------------Dated this the 14[th] day of February, 2023 JUDGMENT The writ petition has been filed by challenging an assessmentorder issued against the petitioner. The petitioner is an NRI. Aseparate procedure has been prescribed in the Income Tax Act forcarrying out assessment of non-resident Indians in Section 144C.Under Section 144C, the Assessing Officer has to forward a draft ofthe proposed order of assessment to the assessee, on receipt ofwhich the assessee can either communicate his acceptance or file hisobjections with the Dispute Resolution Panel and the AssessingOfficer. Admittedly, in the case on hand no such draft order ofassessment has been prepared and sent to the petitioner. The onlydocument sent to the petitioner is an intimation to show cause on theproposed variations. Since the procedure prescribed has not beenfollowed, the assessment order cannot be sustained. In the result, the writ petition is allowed. Ext.P16 order is setaside. The competent authority may proceed with fresh assessment, WP(C) NO. 28243 OF 2022 3 if found necessary. Needless to say all consequential action based on Ext.P16 also stands set aside. Sd/- T.R.RAVIJUDGE WP(C) NO. 28243 OF 2022 4 APPENDIX OF WP(C) 28243/2022 PETITIONER EXHIBITS Exhibit P1A TRUE COPY OF THE POWER OF ATTORNEY DATED 18.05.2022 IN FAVOR OF NITISH SATHEESH SHENOYDATED 18.05.2022 IN FAVOR OF NITISH SATHEESH SHENOY Exhibit P2A TRUE COPY OF THE TAX RESIDENCY CERTIFICATES DATED 11 JUNE 2022 BEARING CERTIFICATE NUMBER TRC-13827-2022 ISSUED BY THE FEDERAL AUTHORITY, UNITED ARAB EMIRATESCERTIFICATES DATED 11 JUNE 2022 BEARING CERTIFICATE NUMBER TRC-13827-2022 ISSUED BY THE FEDERAL AUTHORITY, UNITED ARAB EMIRATES Exhibit P3A TRUE COPY OF THE TAX RESIDENCY CERTIFICATES DATED 11 JUNE 2022 BEARING CERTIFICATE NUMBER TRC-13825-2022 ISSUED BY THE FEDERAL AUTHORITY, UNITED ARAB EMIRATESCERTIFICATES DATED 11 JUNE 2022 BEARING CERTIFICATE NUMBER TRC-13825-2022 ISSUED BY THE FEDERAL AUTHORITY, UNITED ARAB EMIRATES Exhibit P4A TRUE COPY OF THE APPROVAL UNDER SECTION151 OF THE ACT DATED 19.03.2021 ISSUED BYTHE 2ND RESPONDENT151 OF THE ACT DATED 19.03.2021 ISSUED BYTHE 2ND RESPONDENT Exhibit P5A TRUE COPY OF THE NOTICE DATED 06.09.2021 ISSUED UNDER SECTION 142(1) OFTHE ACT06.09.2021 ISSUED UNDER SECTION 142(1) OFTHE ACT Exhibit P6A TRUE COPY OF THE ACKNOWLEDGMENT PAGE OFTHE RETURN OF INCOME FILED BY THE PETITIONER FOR AY 2017-18 ON 24.09.2021THE RETURN OF INCOME FILED BY THE PETITIONER FOR AY 2017-18 ON 24.09.2021 Exhibit P7A TRUE COPY OF THE NOTICES DATED 13.11.2021 ISSUED BY THE 1ST RESPONDENT13.11.2021 ISSUED BY THE 1ST RESPONDENT Exhibit P8A TRUE COPY OF THE NOTICE DATED 10.03.2022 ISSUED BY THE 3RD RESPONDENT10.03.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P4A TRUE COPY OF THE APPROVAL UNDER SECTION151 OF THE ACT DATED 19.03.2021 ISSUED BYTHE 2ND RESPONDENT151 OF THE ACT DATED 19.03.2021 ISSUED BYTHE 2ND RESPONDENT Exhibit P5A TRUE COPY OF THE NOTICE DATED 06.09.2021 ISSUED UNDER SECTION 142(1) OFTHE ACT06.09.2021 ISSUED UNDER SECTION 142(1) OFTHE ACT Exhibit P6A TRUE COPY OF THE ACKNOWLEDGMENT PAGE OFTHE RETURN OF INCOME FILED BY THE PETITIONER FOR AY 2017-18 ON 24.09.2021THE RETURN OF INCOME FILED BY THE PETITIONER FOR AY 2017-18 ON 24.09.2021 Exhibit P7A TRUE COPY OF THE NOTICES DATED 13.11.2021 ISSUED BY THE 1ST RESPONDENT13.11.2021 ISSUED BY THE 1ST RESPONDENT Exhibit P8A TRUE COPY OF THE NOTICE DATED 10.03.2022 ISSUED BY THE 3RD RESPONDENT10.03.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P9A TRUE COPY OF THE RESPONSE FURNISHED BY THE PETITIONER ON 22.03.2022THE PETITIONER ON 22.03.2022 Exhibit P10A TRUE COPY OF THE RESPONSE FURNISHED BY THE PETITIONER ON 24.03.2022THE PETITIONER ON 24.03.2022 WP(C) NO. 28243 OF 2022 5 Exhibit P11A TRUE COPY OF THE NOTICE DATED 26.03.2022 ISSUED BY THE 3RD RESPONDENT26.03.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P12A COPY OF THE REPLY DATED 28.03.2022 Exhibit P13THE EXTRACT OF THE FOREIGN EXCHANGE MANAGEMENT (DEPOSIT) REGULATIONS, 2000MANAGEMENT (DEPOSIT) REGULATIONS, 2000 Exhibit P14A TRUE COPY OF THE DETAILS SUBMITTED BY THE PETITIONER ON 30.03.2022THE PETITIONER ON 30.03.2022 Exhibit P15 JUDGMENT OF THE HON'BLE MADRAS HIGH COURTIN SALEM SREE RAMAVILAS CHIT COMPANY (P) LIMITED [2020] 114 TAXMANN.COM 492IN SALEM SREE RAMAVILAS CHIT COMPANY (P) LIMITED [2020] 114 TAXMANN.COM 492 Exhibit P16TRUE COPY OF THE ASSESSMENT ORDER UNDER SECTION 147 READ WITH SECTION 144B OF THEACT DATED 31.03.2022 ISSUED BY THE 3RD RESPONDENTSECTION 147 READ WITH SECTION 144B OF THEACT DATED 31.03.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P17A TRUE COPY OF THE PENALTY NOTICES DATED 26.07.2022, 27.07.2022 AND 27.07.2022 ISSUED UNDER SECTION 270A, 271F AND 271AAC(1)26.07.2022, 27.07.2022 AND 27.07.2022 ISSUED UNDER SECTION 270A, 271F AND 271AAC(1) Exhibit P18 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF ANDHRA PRADESH IN ZUARI CEMENT LIMITED VS THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE 2(1), TIRUPATI (TS-271-HC-2013(AP)