Vodafone India Services Private Limited v. Deputy Commissioner Of Income - Tax

C/SCA/14227/2019 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 14227 of 2019 ============================================================================== VODAFONE INDIA SERVICES PRIVATE LIMITED VersusDEPUTY COMMISSIONER OF INCOME - TAX ============================================================================== Appearance:MR S N SOPARKAR, SR. ADVOCATE with MR B S SOPARKAR for the Petitioner for the Respondent(s) No. 2,3MRS MAUNA M BHATT for the Respondent(s) No. 1 ============================================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALAandHONOURABLE MR.JUSTICE A.C. RAO Date : 26/08/2019 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a private limited company incorporated under the Companies Act, 1956, has prayed for the following reliefs : “(a)that this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of a writ of mandamus under Article 226 of the Constitution of India, calling for all the papers and proceedings of the Respondent No.1, pertaining to the Subject Application dated 18 May 2017, and after examining the validity, legality and propriety thereof, to direct the Respondent No.1 to expeditiously dispose of the Subject Application dated 18 May 2017; (b)that this Hon'ble Court, in the alternative to prayer clause (a), call for all the papers and proceedings of the Respondent No.1, pertaining the Subject Application dated 18 May 2017, and direct that the tax assessment and/or appellate proceedings of the Petitioner be shifted to the jurisdictional remit of statutory authorities under the Act situated within Mumbai or Pune; (c)pending the hearing and final disposal of this application, that this Hon'ble Court be pleased to restrain the Respondents from conducting the assessment proceedings pending before the Respondents, in relation to the Petitioner; (d)for ad-interim reliefs/interim reliefs, in terms of prayer clause (c); (e)for the costs of this application; and (f)for such further and other reliefs, as this Hon'ble Court may deem fit, proper and appropriate, in the nature and circumstances of this case.” Having regard to the nature of the relief prayed in this writ-application, Mr.Soparkar, the learned senior counsel appearing for the writ-applicant, straightway invited our attention to Annexure-A, page-29. Annexure-A is the subject application. The same is dated 18th May 2017 and it reads as under : “To, Dy.Commissioner of Income Tax,Circle 4(1)(2), B-209, Pratyakshar Bhawan,Ahmedabad,Gujarat. Dear Sir, Re.:Vodafone India Services Private Limited ('VISPL' or 'the Assessee') Permanent Account Number (PAN): Sub.: Application for migration of PAN under section 127(2) of the Income Tax Act, 1961, in the matter of Vodafone India Services Private Limited, pursuant to shifting registered office from Ahmedabad, Gujarat to Mumbai, Maharashtra Having regard to the nature of the relief prayed in this writ-application, Mr.Soparkar, the learned senior counsel appearing for the writ-applicant, straightway invited our attention to Annexure-A, page-29. Annexure-A is the subject application. The same is dated 18th May 2017 and it reads as under : “To, Dy.Commissioner of Income Tax,Circle 4(1)(2), B-209, Pratyakshar Bhawan,Ahmedabad,Gujarat. Dear Sir, Re.:Vodafone India Services Private Limited ('VISPL' or 'the Assessee') Permanent Account Number (PAN): Sub.: Application for migration of PAN under section 127(2) of the Income Tax Act, 1961, in the matter of Vodafone India Services Private Limited, pursuant to shifting registered office from Ahmedabad, Gujarat to Mumbai, Maharashtra 1. We represent the Assessee in ongoing tax proceedings, pursuant to migration of PAN from Mumbai to Ahmedabad, notified to the Assessee vide letter dated 27 October 2016 bearing reference no.Pr/CIT-3/PAN migration/2016-17, issued by the Office of the Principal Commissioner of Income Tax-3, Mumbai. Copy of the letter dated 27 October 2016, issued by the Office of the Principal Commissioner of Income Tax-3, Mumbai, is attached as Annexure 1.pursuant to migration of PAN from Mumbai to Ahmedabad, notified to the Assessee vide letter dated 27 October 2016 bearing reference no.Pr/CIT-3/PAN migration/2016-17, issued by the Office of the Principal Commissioner of Income Tax-3, Mumbai. Copy of the letter dated 27 October 2016, issued by the Office of the Principal Commissioner of Income Tax-3, Mumbai, is attached as Annexure 1. 2. By our letter dated 10 November 2016 to you, we requested that the jurisdiction of VISPL's tax assessment be re-transferred to Mumbai, on the premise, that (a) the Assessee has since inception been assessed in Mumbai, both prior to and subsequent to internal restructuring within the department; and (b) the Assessee was in the process of complying with the statutorily prescribed procedure, requested that the jurisdiction of VISPL's tax assessment be re-transferred to Mumbai, on the premise, that (a) the Assessee has since inception been assessed in Mumbai, both prior to and subsequent to internal restructuring within the department; and (b) the Assessee was in the process of complying with the statutorily prescribed procedure, under the Companies Act, 2013, ('CA 2013') for shifting of its registered office from Ahmedabad, i.e. from the State of Gujarat, to Mumbai i.e. to the State of Maharashtra. Copy of our letter dated 10 November 2016 is attached as Annexure 2. 3. The Assessee, who had, meanwhile, commenced the procedure for shifting of its registered office from Ahmedabad to Mumbai on 14 October 2016 (through its board resolution of that date) in complying with the procedure prescribed under the CA 2013, completed the final step through the filing of application in Form INC 22 with the Registrar of Companies, on 24 April 2017, for furnishing 'notice for change of situation of registered office', to the Ministry of Corporate Affairs ('MCA'). Copy of the Form INC 22 filed attached as Annexure 3.procedure for shifting of its registered office from Ahmedabad to Mumbai on 14 October 2016 (through its board resolution of that date) in complying with the procedure prescribed under the CA 2013, completed the final step through the filing of application in Form INC 22 with the Registrar of Companies, on 24 April 2017, for furnishing 'notice for change of situation of registered office', to the Ministry of Corporate Affairs ('MCA'). Copy of the Form INC 22 filed attached as Annexure 3. 4. Based on the foregoing compliances by the Assessee, the relevant statutory authority, i.e. the MCA, has given effect to the application for change of registered office of the Assessee, in its records, and issued a 'Certificate of Registration' dated 17 May 2017, under section 13(5) of the CA 2013, reflecting the new registered office of the Assessee in Mumbai. Copy of the Certificate of Registration is attached as Annexure 4.the relevant statutory authority, i.e. the MCA, has given effect to the application for change of registered office of the Assessee, in its records, and issued a 'Certificate of Registration' dated 17 May 2017, under section 13(5) of the CA 2013, reflecting the new registered office of the Assessee in Mumbai. Copy of the Certificate of Registration is attached as Annexure 4. 5. Separately, during the hearing of appeal for AY 2012-13, on 26 April 2017, before 'I' bench of the Hon'ble Income Tax Appellate Tribunal, Ahmedabad, Counsel 13, on 26 April 2017, before 'I' bench of the Hon'ble Income Tax Appellate Tribunal, Ahmedabad, Counsel for VISPL had made submissions in relation to the imminent shift of the registered office of VISPL from Ahmedabad, Gujarat to Mumbai, Maharashtra, and an application for transfer of the appeal to Mumbai was filed on 26 April 2017. Copy of the application filed in ITAT, Ahmedabad (without annexures) attached as Annexure 5. 6. Accordingly, an order under section 127(2) of the Act for transfer of jurisdiction in relation to the Assessee's tax assessments from Ahmedabad to Mumbai may be issued, accordingly.for transfer of jurisdiction in relation to the Assessee's tax assessments from Ahmedabad to Mumbai may be issued, accordingly. Sincerely, Sd/- DMD Advocates Advocate for Vodafone India Services Private Limited” The grievance of the writ-applicant as redressed by way of this writ-application is that it has been almost two years since the date of the filing of the subject application, but till this date the same has not even been looked into and no appropriate orders have been passed. Mr.Soparkar invited our attention to Annexure-MM, page-192 dated 1st September 2017. It is the first reminder so far as the subject application is concerned. Thereafter, our attention was invited to Annexure-NN, page-195 dated 8th February 2018. It is the second reminder. Thereafter, our attention was invited to Annexure-PP, page-201 dated 17th May 2019. It is the third reminder. It appears that thereafter the writ-applicant received an intimation dated 11th July 2019 from the Deputy Commissioner of Income Tax, Ahmedabad, informing that the authority, to pass the order under Section 127 of the Income Tax Act, 1961, is the Principal Commissioner of Income Tax. The writ-applicant was asked to take up the matter with the Principal Commissioner of Income Tax – 4, Ahmedabad. Upon receipt of the letter dated 11th July 2019 (Annexure-TT to this writ-application), the writ-applicant once again addressed a reminder to the Principal Commissioner of Income Tax – 4, Ahmedabad (Annexure-UU, page-228 dated 25th July 2019). Even thereafter the Principal Commissioner of Income Tax has not responded to the same. The relief prayed for is quite limited. The writ-applicant wants the Principal Commissioner of Income Tax to take up the subject application dated 18th May 2017 (Annexure-A to this writ-application) for consideration and for passing of the appropriate orders. The relief prayed for is quite limited. The writ-applicant wants the Principal Commissioner of Income Tax to take up the subject application dated 18th May 2017 (Annexure-A to this writ-application) for consideration and for passing of the appropriate orders. Having heard the learned counsel appearing for the writ-applicant and having gone through the materials on record, we are of the view that as the subject application is pending since 18th May 2017, the same should be taken up for consideration. In such circumstances, the Principal Commissioner of Income Tax – 4, Ahmedabad (Respondent No.2) is directed to immediately look into the subject application (Annexure-A to this writ-application dated 18th May 2017) and pass an appropriate speaking order in accordance with law after hearing the writ-applicant. Let this exercise be undertaken at the earliest and completed within a period of four weeks from the date of receipt of this order. With the above, this writ-application is disposed of. Direct service is permitted. (J. B. PARDIWALA, J.) /MOINUDDIN (A. C. RAO, J.)