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2019 (8) TMI 997 - HC - Income TaxValidity of Demand raised u/s 115-QA in order passed u/s 143(3) - buy back of equity shares - tax on distributed income to shareholders - maintainability of writ - alternative remedy - HELD THAT - The impugned order is not challenged on the ground that it is wholly without jurisdiction . What is sought to be urged is that the point involved a pure question of law concerning the interpretation of Section 115-QA and therefore this Court should entertain the present writ petition. Since the Assessee had already been heard on more than one occasion by this Court it should not have at the stage of final hearing be rejected only on the ground of maintainability. The question regarding the interpretation of Section 115-QA as it stood at the relevant time can definitely be gone into by the CIT (A). This Court has in fact not expressed any view yet on the maintainability of the petition although as rightly pointed out the matter was heard on this aspect earlier as well. The fact remains that the Respondent raised the objection at the first available opportunity. Due to reasons noted hereinbefore the issue could not be decided till now. It would however not be correct to state that this Court has impliedly overruled such an objection and decided to hear the petition on merits. Court also notes in this context that the Assessee has in fact succeeded in its appeal before the CIT (A) on other issues arising out of the same impugned assessment order and it is the Revenue which is now in appeal before the ITAT. There is no reason why this one other issue arising from the impugned assessment order cannot also be examined by the CIT(A). The Court is conscious that nearly three years have elapsed since the passing of the impugned assessment order. However in view of the statement made on behalf of the Revenue that they would raise no objection regarding maintainability of the appeal u/s 246A before the the CIT (A) and would also not raise any objection regarding limitation the Court sees no prejudice being caused to the Assessee by being relegated to the CIT (A). Most importantly with the Revenue agreeing not to enforce the demand till the conclusion of the appellate proceedings before the CIT (A) the Assessee is not going to be inconvenienced. Moreover this Court proposes to issue directions for a time bound disposal of the appeal by the CIT (A). Accordingly the writ petition is disposed of with the following directions (i) The Court declines to entertain this writ petition under Article 226 of the Constitution against the impugned demand raised by the Revenue by way of the impugned assessment order under Section 115-QA against the Assessee. (ii) The Assessee is granted an opportunity to file an appeal under Section 246-A before the CIT (A) to challenge the impugned assessment order only insofar as it creates a demand under Section 115 QAt. (iii) If such an appeal is filed within ten days from today it will be considered on its own merits and a reasoned order disposing of the appeal will be passed by the CIT (A) on all issues raised by the Assessee not limited to the issues raised in the present petition as well as on the response thereto by the Revenue in accordance with law. (iv) The reasoned order shall be passed by the CIT (A) not later than 31st October 2019. It will be communicated to the Petitioner within ten days thereafter. For a period of two weeks after the date of such communication of order the demand under the impugned assessment order if it is affirmed by the CIT (A) in appeal will not be enforced against the Assessee. (v) The Court places on record the statement of the Revenue that it will not raise any objection before the CIT (A) as to the maintainability of such an appeal and as to the appeal being barred by limitation. The Court also takes on record the statement of the Revenue that it will not enforce the demand in terms of the impugned assessment order till the disposal of the above appeal. All of the above is subject to the Assessee filing the appeal before the CIT (A) within ten days from today. (vi) It is made clear that this Court has not expressed any view whatsoever on the contentions of either party on the merits of the case.
Issues Involved:
1. Maintainability of the writ petition. 2. Interpretation of Section 115-QA of the Income Tax Act, 1961. 3. Demand under Section 115-QA for buyback of shares. 4. Alternative remedy available under Section 246-A of the Income Tax Act. 5. Additional point regarding the merger of the entity and its impact on the assessment order. Issue-wise Detailed Analysis: 1. Maintainability of the Writ Petition: The Respondent raised a preliminary objection regarding the maintainability of the petition, arguing that an alternative efficacious remedy was available to the Assessee under the Act. The Court noted that the Assessee had already been heard on more than one occasion, but it had not expressed any view on the maintainability of the petition. The Court emphasized that the objection was raised at the first available opportunity and had not been implicitly overruled. 2. Interpretation of Section 115-QA of the Income Tax Act, 1961: The Assessee contended that the buyback of shares was pursuant to a scheme of arrangement under Section 391 of the Companies Act, 1956, approved by the High Court of Delhi, and thus not a "buyback" under Section 77-A of the Companies Act for the purposes of Section 115-QA of the Income Tax Act. The Court noted that the amendment to Explanation 1 of Section 115-QA by the Finance Act 2016, which substituted the words "Section 77-A of the Companies Act, 1956" with "any law for the time being in force relating to companies," was effective only from 1st June 2016. Therefore, the demand created under Section 115-QA for the buyback of shares in 2013 was unsustainable in law. 3. Demand under Section 115-QA for Buyback of Shares: The impugned assessment order created a demand under Section 115-QA for the buyback of 10 lakhs equity shares from M/s. Genpact India Investment, Mauritius, in two phases in May and October 2013. The Revenue argued that the scheme adopted was a colorable device to evade buyback distribution tax liability. However, the Assessee argued that the buyback was approved under Section 391 of the Companies Act, 1956, and thus not subject to Section 115-QA as it stood at the relevant time. 4. Alternative Remedy Available Under Section 246-A of the Income Tax Act: The Court observed that the Assessee had an alternative remedy of appeal under Section 246-A of the Act before the Commissioner of Income Tax (Appeals) [CIT (A)]. The Court noted that the Assessee had succeeded in its appeal before the CIT (A) on other issues arising out of the same impugned assessment order, and the Revenue was now in appeal before the ITAT. The Court saw no reason why the issue of demand under Section 115-QA could not also be examined by the CIT (A). 5. Additional Point Regarding the Merger of the Entity and Its Impact on the Assessment Order: The Assessee raised an additional point, based on the Supreme Court's decision in Pr. Commissioner of Income Tax, New Delhi v Maruti Suzuki India Limited, arguing that the impugned assessment order was framed against an entity that ceased to exist at the time of passing the order due to its merger with Genpact India Private Limited. The Court left it open to the Assessee to raise this issue in the appeal before the CIT (A). Conclusion: The Court declined to entertain the writ petition under Article 226 of the Constitution against the impugned demand raised under Section 115-QA of the Act. It granted the Assessee an opportunity to file an appeal under Section 246-A of the Act before the CIT (A) to challenge the impugned assessment order. The Court directed that if such an appeal is filed within ten days, it will be considered on its own merits, and a reasoned order will be passed by the CIT (A) by 31st October 2019. The Court also noted the Revenue's statement that it would not raise objections regarding the maintainability of the appeal or limitation and would not enforce the demand until the disposal of the appeal.
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