9911796707
TMI Blog2013 (5) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 before this Court and during the pendency of the proceedings, the parties came to a negotiated settlement and entered into a Deed of Compromise, whereby the proposed purchaser agreed to pay a demarcated sum of compensation. M/s.Wescare (India) Ltd. being the sole funder, the entire agreement including the receivable, comprising of monies including compensation, was assigned to M/s.Wescare (India) Ltd. The amount of compensation receivable by the petitioner, had been paid directly to the entity, namely M/s.Wescare (India) Ltd. which funded for the purchase of the land entirely. Accordingly, the transaction resulted in no profits or income accruing to the petitioner in terms of which it would be liable to tax. (b) The petitioner maintains full and complete documentation, in which details of the above transaction were set out. All remittances in connection with the above transaction had been effected only through normal banking channels. Inasmuch as no income had accrued or arisen to the petitioner by means of the above transaction, the petitioner was advised that there was no liability to file a Return of Income in terms of the provisions of the Income Tax Act (for short, 'the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the position that the notice had been issued belatedly and that a fresh notice would be issued posting the matter for hearing afresh. (f) The petitioner under the bona-fide belief, was waiting for a notice of hearing and to their shock, they received an order of assessment passed under Section 143(3) read with Section 147 of the I.T. Act without reference to the specific request of the petitioner for grant of opportunity and the said order is passed in gross violation of the principles of natural justice and it is contrary to the provisions of law. (g) The scheme of the I.T. Act provides that on filing of Return of Income in terms of Section 139, the same is to be proceed in the manner set out in terms of Section 143, which deals with the procedures for assessment. A notice under Section 143(2) being a mandatory pre-condition to the completion of an assessment under Section 142(3), is to be issued by the Assessing Officer in all situations where the Assessing Officer considers it necessary to ensure that the assessee has reported the correct income liable to tax and to afford an opportunity to the assessee to attend his office and produce evidence in respect of the issues arisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d their surplus funds in funding the business transactions of development of Real Estate with the petitioner. Pursuant to the compromise entered into duly by the parties and noted by this Court, M/s.Wescare (India) Ltd. was fully compensated by the petitioner in terms of the Memo of Compromise. (j) The conclusions of the assessing authority are based on a mis-appreciation triggered by the fact that requisite opportunity was not provided to the petitioner to provide the necessary information and clarifications and the impugned order of assessment, dated 20.3.2013 has been received by the petitioner only on 3.4.2013 and it was despatched only on 30.3.2013, as seen from the Postal endorsement. The respondent is attempting to make it appear that the order of assessment has been despatched ten days prior to the date of actual despatch. The date of completion of assessment being 20.3.2013 is clearly an attempt to get over the petitioner's letter, dated 20.3.2013, duly received by the respondent and it highlights the lack of opportunity to the petitioner and it also lacks bona-fide on their part. Hence, the petitioner has filed the Writ Petition challenging the impugned order of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s adjourned to 21.01.2013. During the course of hearing, the Authorised Representative filed his written submissions along with necessary details and documents. 5. There was no response from the assessee company thereafter. A notice dated 07.03.2013 was issued u/s 143(2) of the Income Tax Act, 1961, posting the case for hearing on 14.03.2013, for clarifying certain issues. However, by oversight, the hearing notice was not despatched and was despatched only on 16.03.2013. This fact was never brought to the notice of the undersigned. The mistake thus is a bona fide mistake. 6. As per the hearing notice, the case was posted for hearing on 14th March 2013 at 11.30 AM. However, there was no response. Considering the fact that the assessment proceedings get time barred by 31.03.2013, the undersigned proceeded to complete the assessment and order dated 20.3.2013 was passed under Section 143(3) rws 147 of the Income Tax Act, 1961, raising a demand after taking into consideration the details and documents available on record." 8. From the facts pleaded and on a perusal of the abovesaid written instructions, it is clear that as there was no timely service of notice, dated 7.3.2013 about t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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