M/S Asian Tradecon Ltd vs Union Of India Thr Principal And ...
2021 Latest Caselaw 13141 Bom

                                                            427-1-WP-3322-21.doc

Sharayu Khot.
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                             WRIT PETITION NO. 3322 OF 2021


      M/s. Asian Tradecon Limited                           ...Petitioner

                Versus

      Union of India & Ors.                                 ...Respondents

                                          ----------
      Mr. Ramesh Ramamurthy a/w Mr. Saikumar Ramamurthy for the
      Petitioner.
      Mr. Suresh Kumar for the Respondent.
                                          ----------

                                           CORAM       : K.R. SHRIRAM &
                                                         R.I. CHAGLA, JJ.

                                           DATE        : 15 September 2021
                                                          (V.C.)

      ORDER :

1. Petitioner is impugning the assessment order dated 30th

April 2021 for assessment year 2018-19 on the grounds that the same

has been passed without application of mind and on incorrect

reasons.

427-1-WP-3322-21.doc

2. In the assessment order it is stated as under:-

"Notices u/s 142(1) dated 17/1/2020, 12/2/2020 and 7/4/2021 and reminder dated 11/11/2020 and 14/12/2020 was left unheeded, even though a statutory notice mandates utmost compliance. Since the assessee was not responsive, the case was referred to Verifcation Unit for physical service of notice. The VU has reported vide reports dated 23/02/2021, 24/02/2021 and 25/02/2021 that the assessee was searched in 3 probable addresses, but the assessee could not be located.

The assessee has failed to comply with the provisions of all the terms of the notice issued under Sub-section (1) to Section 142, as per the provisions of S. 144(1)(b), as a last resort compelled to make as assessment, as the best judgment assessment u/s 144 after taking into account all materials which have been gathered and other information available on record."

Therefore, the Assessing Officer has proceeded on the

basis that petitioner has not responded to any of the notices and the

petitioner was not traceable at any of the addresses, and therefore,

the order has been passed based on material which has been

gathered and other information available on record.

3. It is pertinent to note that petitioner had received a

notice dated 22nd September 2019 under Section 143(2), to which

427-1-WP-3322-21.doc

there is no reference in the impugned order, seeking further details.

Petitioner filed its reply dated 7th October 2019 to this notice as per

the evidence available in the e-proceedings, response

acknowledgment of the department. There is no reference to this

reply in the impugned order. Thereafter petitioner received another

notice dated 17th January 2020 under Section 142(1) of the Act to

which according to petitioner, a reply dated 23rd January 2020 has

been filed. It is Respondent's case that it was filed only on 30th April

2021 and not on 23rd January 2020. Petitioner later received a

notice dated 12th February 2020 under Section 142(1) followed by a

reminder dated 14th December 2020. Admittedly, no response was

filed by petitioner to these two notices. Petitioner thereafter received

a notice dated 7th April 2021 to which a partial response has been

filed on 30th April 2021. In view of this background, for the

Assessing Officer to say that the notices issued by respondents under

Section 142(1) of the Act were left unheeded or the assessee was

unresponsive is not correct.

4. For respondent to also say that the verification unit for

physical service of notice reported that petitioner could not be

located in the three addresses also is not acceptable because

427-1-WP-3322-21.doc

petitioner is a company registered under the Companies Act, 1956

and the address mentioned in Exh.R-1 to the reply at page 376 is the

registered office address of the company. It is stated in the report that

it is the residential apartment and the address was found but details

of the specified person could not be ascertained also is unacceptable.

Next address is a commercial address belonging to

petitioner from where petitioner was carrying on his business and

this address can also be found in the return filed, but for the

Income-tax Inspector who filed a report to say that address found,

but details of the specified person could not be ascertained again

is unacceptable.

There is a third address in which service has been

attempted, but petitioner says that address does not belong to

petitioner and it is so mentioned in the rejoinder.

5. In the circumstance, for the Assessing Officer to say that

no response was received from the petitioner or petitioner could not

be traced is certainly not acceptable to the Court. Therefore, the

assessment order dated 30th April 2021 is quashed and set aside. The

consequential notices also dated 30th April 2021 under Section 274

427-1-WP-3322-21.doc

read with 270A, 271AAC(1) and 272A(1)(d) of Income-tax Act, 1961

are set aside.

6. Matter is remanded for de novo adjudication keeping

open the rights and contentions of petitioner.

7. Shri. Ramesh Ramamurthy states that petitioner will file

all further documents required as per the notices/reply to the notices

referred to in the petition within a period of two weeks from today.

Statement accepted as an undertaking to this Court. If not filed the

Assessing Officer may proceed to pass order considering the response

already filed, but shall grant a personal hearing to petitioner in

accordance with the rules.

We clarify that we have not made any observations on

the merits of the case.

8. Petition disposed.

      [R.I. CHAGLA J.]                                 [K.R. SHRIRAM, J.]