2018 (3) TMI 1624 - HC - Income Tax

Validity of notice issued u/s 163(1) - representative assessee / agent of non-resident - CFO in India - Held that - The petitioner has challenged only the show cause notice and the respondent has not passed any order so far. That being the case, by giving a reply to the respondent for the show cause notice dated 09.01.2018 would not prejudice the petitioner in any manner whatsoever. That apart, I do not find any reason to interfere with the show cause notice issued by the respondent for the reason that the petitioner has got a right to give a reply to the same. The writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed. - Decided against the assessee.

Summary

Issues:
Challenge to show cause notice under section 163(1)(c) of the Income Tax Act, 1961.

Analysis:
The petitioner filed a writ petition seeking a Writ of Certiorari to quash a show cause notice issued by the respondent under section 163(1)(c) of the Income Tax Act, 1961. The petitioner argued that the notice was without jurisdiction as the provisions of the Act were not satisfied. Specifically, it was contended that to treat a person in India as a representative assessee/agent of a non-resident, the non-resident must be in receipt of income from or through the said person in India. The petitioner claimed that the non-resident entity in question was not in receipt of any income from the petitioner, thus rendering the notice unsustainable.

The respondent, represented by the Senior Standing Counsel, argued that the show cause notice was merely a call for the petitioner to show cause and that there was no need to interfere with it at that stage. It was suggested that the petitioner should submit a reply, which would be considered by the respondent in due course. The respondent emphasized that the petitioner's objections regarding the notice could be raised in the reply, and the respondent would then pass appropriate orders after due consideration.

The court, after considering the arguments presented, held that since the respondent had only issued a show cause notice and had not passed any final order, there was no basis to interfere with the notice at that point. The court directed the petitioner to submit a reply to the show cause notice within six weeks. It was further ordered that upon receiving the reply, the respondent should decide on the matter, giving the petitioner a fair opportunity for a personal hearing and considering the reply independently. The court clarified that the respondent should not base its decision on the counter affidavit filed in the writ petition. Ultimately, the court dismissed the writ petition, allowing the petitioner to respond to the show cause notice within the specified timeframe, and instructed the respondent to proceed with the matter in accordance with the law.