L And L Holding Company Llc v. Assistant Commissioner Of Income Taxinternational Tax Circle 3(1)(2), Mumbai And Ors

TRUSHATUSHARMOHITEDigitally signed byTRUSHA TUSHARMOHITEDate: 2023.08.0414:24:36 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.8366 OF 2023 L and L Holding Company LLC ….. Petitioner Vs. Assistant Commissioner of Income TaxInternational Tax Circle 3(1)(2), Mumbai and Ors. ….. Respondents Mr.Neeraj Sheth along with Mr.Jitendra Singh for petitioner Mr.Subir Kumar, Senior Standing Counsel a/w Ms.Sruti Kalyanikar forRespondents CORAM:K.R. SHRIRAM, J &FIRDOSH P. POONIWALLA, J.DATED :31[st] JULY 2023 P.C. 1.Mr.Subir Kumar, on instructions, and as an officer of theCourt, in fairness suggests that the impugned order dated 17[th] April 2023be quashed and set aside and the matter be remanded for denovoconsideration. 2.In the circumstances, we hereby quash and set aside the orderdated 17[th] April 2023 passed under Section 148A(d) of the Act. We remit the matter back to Respondent No.1 but the officer who shall consider thematter will be someone different from said Ms. Monica Pande who has passed the impugned order. Respondent No.2 may assign the matter to anyother officer as he/she deems fit. 3.The consequential notice dated 17[th] April 2023 issued underSection 148 is also hereby quashed and set aside. 4.The officer to whom the matter is assigned by RespondentNo.2 may pass such order as deemed fit in accordance with law. But beforepassing any such order Petitioner shall be given a personal hearing noticewhereof shall be communicated at least 7 working days in advance toPetitioner. After the personal hearing, should Petitioner wish to file anywritten submissions recording what transpired during the personalhearing, Petitioner may file the same within three working days thereof.The order to be passed under Section 148A(d) shall be a reasoned orderdealing with every submission made by Petitioner. 5.While passing the order, we hope the officer would considerwhether the ‘information’ in possession of the Department prima facie,satisfies the requirement of enabling a suggestion of escapement from tax.The officer shall consider whether at all the ‘information’ gathered couldlead to a suggestion of escapement from tax. Officer shall also keep inmind that issues decided categorically by judicial precedent should not berevisited in the guise of reassessment. 6.Mr.Sheth states that before respondent no.1 proceeds further it would save time if respondent no.1 provides list of queries so thatpetitioner will be able to effectively respond to the same. Mr.Sheth hastensto add that this also is without prejudice to petitioner’s rights andcontentions that the reopening is time barred and there is no escapementof income. Respondent no.1 shall provide the list, if any, alongwih thenotice for personal hearing. 7.Petition disposed. No order as to costs. (FIRDOSH P.POONIWALLA, J.) (K.R. SHRIRAM, J.)