Simens Limited v. Vijay Varma

IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2127 OF 2009 Simens Limited..Petitioner. Vs. Vijay Varma, The Additional Commissioner of Income Tax,Range 7(2) and others ..Respondents. .... Mr. Percy Pardiwala, Senior Advocate with Mr. R. Murlidhar, Mr. Arun Siwach and Mr. Manu Kulkarni i/b Amarchand & Mangaldas & S.A. Shroff & Co. for the Petitioner.Mr. Darius J. Khambata, Addl. Solicitor General with Mr. B.M. Chatterji i/b Ms Anamika Malhotra for the Respondents. .... CORAM : DR. D.Y.CHANDRACHUD & J.P. DEVADHAR, JJ. P.C.: 5[th] March, 2010. Counsel appearing on behalf of the Petitioner and the learned Additional Solicitor General appearing on behalf of the Respondents have tendered agreed Minutes in terms whereof an order has been sought. The learned counsel are agreed in stating that in view of the fact that parties have agreed to the modalities as set out in the Minutes it is not necessary for this Court to record any reasons while disposing of the Petition. In view of the agreed Minutes, the challenge to the constitutional validity of Section 142(2A) has not been pressed in these proceedings. The agreed Minutes which have been signed by the learned counsel read as follows : MINUTES OF ORDER 1) Order dated 08/10/2009 passed by Respondent No.1 (Exhibit “Q” to the Petition) is hereby set aside; 2) Respondent No.1 is directed to give the Petitioner an opportunity of a hearing in response to the Show Cause Notice opportunity of a hearing in response to the Show Cause Notice dated 06/07/2009 (Exhibit-I to the Petition) and thereafter if he is of the view that the conditions of Section 142(2A) of the Act are fulfilled and the same is approved by Respondent No.2, pass an order directing a special audit to be conducted;are fulfilled and the same is approved by Respondent No.2, pass an order directing a special audit to be conducted; 3) The order under Section 142(2A), if any, shall be passed by 31[st ]March, 2010;March, 2010; 4) Consequently, the approval dated 07/10/2009 accorded by Respondent No.2 (Exhibit “T” to the Petition) is also hereby set Respondent No.2 (Exhibit “T” to the Petition) is also hereby set aside; 5) The written submissions already filed by the Petitioner in response to the show cause notice dated 06/07/2009 (Exhibit “I” to the Petition) shall continue on record and shall be treated as submissions made at the said hearing. The Petitioner would be at liberty to file any further submissions on or before 15[th ]March, 2010;“I” to the Petition) shall continue on record and shall be treated as submissions made at the said hearing. The Petitioner would be at liberty to file any further submissions on or before 15[th ]March, 2010; 6) The stay of the assessment proceedings under Section 143(3) shall continue upto 30[th] June, 2010 or, if an order under Section 142(2A) is passed directing a special audit then upto the expiry of a period of ten weeks from the date of submission of the Audit Report under Section 142(2A), whichever is later;shall continue upto 30[th] June, 2010 or, if an order under Section 142(2A) is passed directing a special audit then upto the expiry of a period of ten weeks from the date of submission of the Audit Report under Section 142(2A), whichever is later; 7) In the event an order under Section 142(2A) is passed, as provided in Clause 3, the operation of the order should remain stayed for four weeks from the date of service of the order to enable the Petitioner to have recourse to its remedies in law;provided in Clause 3, the operation of the order should remain stayed for four weeks from the date of service of the order to enable the Petitioner to have recourse to its remedies in law; 7) In the event an order under Section 142(2A) is passed, as provided in Clause 3, the operation of the order should remain stayed for four weeks from the date of service of the order to enable the Petitioner to have recourse to its remedies in law;provided in Clause 3, the operation of the order should remain stayed for four weeks from the date of service of the order to enable the Petitioner to have recourse to its remedies in law; 8) The order of the Transfer Pricing Officer under Section 92CA(3) in the case of Petitioners shall be passed no later than sixty days prior to the date on which the period of limitation under Section in the case of Petitioners shall be passed no later than sixty days prior to the date on which the period of limitation under Section 153 for making the assessment in the case of Petitioner will expire; 9) This order shall not in any manner be construed as a determination on the merits of the order dated 08/10/2009 and the approval dated 07/10/2009. The Respondents shall be free to pass such orders and to give approval uninfluenced by this order and on the merits of the case; 10)All contentions of the parties are kept open. The Petition shall accordingly stand disposed of in the aforesaid terms as agreed. There shall be no order as to costs. (Dr. D.Y.Chandrachud, J.) (J.P. Devadhar, J.)