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1 IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 24th DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 16961 OF 2022(T-IT)
BETWEEN:
M/S. FLIPKART INTERNET PRIVATE LIMITED THROUGH ITS AUTHORIZED SIGNATORY MR. KAMAL CHOPRA AGED 49 YEARS BUILDINGS ALYSSA, BEGONIA & CLOVE EMBASSY TECH VILLAGE OUTER RING ROAD, DEVARBEESANAHALLI VILLAGE BENGALURU – 560 103. …PETITIONER (BY SRI. TARUN GULATI, ADVOCATE FOR SRI. SURAJ SUBRAMANIYAN & SRI. KUMAR VISALAKSH., ADVOCATES)
AND:
UNION OF INDIA
THE CENTRAL BOARD OF DIRECT TAXES
THROUGH JONT SECRETARY
HAVING ITS OFFICE AT DEPARTMENT OF REVENUE
MINISTRY OF FINANCE, GOVERNMENT OF INDIA
CENTRAL SECREATARIAT, NORTH BLOCK
NEW DELHI – 110 001.
ASSISTANT COMMISSIONER OF INCOME TAX
CENTRAL CIRCLE – 1(4), CENTRAL REVENUE BUILDING
QUEENS ROAD, BENGALURU – 560 001.
THE BOARD OF ADVANCE RULING
THROUGH JOINT SECRETARY
UNDER THE DEPARTMENT OF REVENUE
MINISTRY OF FINANCE, GOVERNMENT OF INDIA
CENTRAL SECRETARIAT, NORTH BLOCK
NEW DELHI – 110 001.
…RESPONDENTS
(BY SRI.K.V. ARAVIND., ADVOCATE FOR R-1 & R-2 SRI. MADANAN PILLAI., ADVOCATE FOR R-3)
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTION OF LIKE NATURE TO CALL FOR EXAMINE AND QUASH AND SET ASIDE THE IMPUGNED COMMUNICATION(S) DATED: 14.02.2022 ANNEXURE-A AND ETC.
THIS W.P. COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In this petition, petitioner has sought for the following reliefs:- a. Issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction of like nature, to call for, examine and quash and set aside the Impugned Communication(s) dated 14.02.2022 (Annexure-A); ITBA/ASK/F/73/2021- 22/1039709653(1) issued by Assistant Commissioner of Income Tax. b. Issue a writ of Mandamus or writ in the nature of Mandamus, or any other order directing the Respondent No.2 to proceed the ROI filed by the Petitioner and to issue the refund of INR 28.70 Crores for AY 2016-17; c. In the alternative, issue a Writ of Mandamus or writ in the nature of Mandamus, or any other order directing: (i) the Respondent No.3 to dispose the application for Advance Ruling filed by the Petitioner expeditiously within a specified time-frame and/or (ii) the Respondent No.2 to finalize the assessment;
3 d. Interim and ad-interim reliefs in terms of the prayer (a) and (b) above; e. Pass such other order or further orders as may be deemed just and property this Hon’ble Court in the facts and circumstances of the case.
Heard learned counsel for the petitioner, learned counsel for the respondents and perused the material on record.
In addition to reiterating the various contentions urged in the petition and referring to the documents produced by the petitioner, learned counsel for the petitioner submits that pursuant to the returns filed by the petitioner for the assessment year 2016-17, whereunder it claimed refund of TDS, the petitioner submitted representations on 10.07.2019, 05.03.2020 and 21.04.2020 requesting the 2nd respondent to process the return and grant refund along with interest. Meanwhile, the petitioner also filed an application dated 30.09.2019 before the Authority for Advance Ruling (AAR), Mumbai, in this regard. Since, the application was not disposed of, petitioner filed an early hearing application before the AAR
4 and on 19.01.2021, the said application was adjourned at the instance of the respondents.
3.1 Meanwhile, on 01.02.2021, the Union Budget for the year 2021-22 substituted the AAR with the Board for Advance Ruling (BAR); however, the date of coming into force of the BAR has not been notified so far. Thereafter, the AAR issued a communication dated 17.02.2021 to the petitioner and other applicants informing them that all cases listed on 09.03.2021 were adjourned sine die and further communication in this regard would be given to the applicants.
3.2 Subsequently, petitioner submitted a letter dated 17.05.2021 requesting the Deputy Commissioner of Income Tax to issue the pending refund and followed it up the same by an online grievance dated 23.06.2021 submitted before the Central Processing Centre. On 26.10.2021, petitioner submitted one more letter before the 2nd respondent seeking reasons, as to why assessment order was not passed, to which, the 2nd respondent issued a reply dated 29.10.2021 to the effect that the time limit for passing the assessment order stand extended, since the application
5 filed by the petitioner had not been disposed of as on that date.
3.3 The petitioner submitted a detailed reply on 03.12.2021 and also addressed email communications dated 12.01.2022 and 11.02.2022, to which the 2nd respondent issued a reply dated 14.02.2022 intimating the petitioner that its application was pending before AAR and the time limit for completion of assessment was extended and consequently, refund cannot be processed on account of the pending AAR application. Subsequently, petitioner submitted letters dated 16.06.2022 and 30.06.2022 reiterating its position and requesting processing of its returns and for grant of refund along with interest. It is the grievance of the petitioner that despite the aforesaid facts and circumstances, the respondents have not taken any steps to process the returns of the petitioner nor passed any orders on its request for refund and as such, the petitioner is before this Court by way of the present petition.
Per contra, learned counsel for the respondents submit that there is no merit in the petition and the same is liable to be dismissed.
The material on record discloses that though several contentions have been urged by both sides in respect of their respective claims, in the light of the undisputed fact that the application filed by the petitioner before the AAR is still pending and has not been disposed of, in the interest of justice and in order to ensure that the assessment is completed, I deem it just and appropriate to dispose of this petition directing the 2nd respondent to complete the assessment and issue further directions in this regard.
In the result, I pass the following:-
ORDER
(i) The petition is hereby disposed of. (ii) The 2nd respondent is directed to finalise/complete the assessment for the assessment year 2016-17 of the
7 petitioner in accordance with law as per the timelines fixed under Section 153 of the Income Tax Act, 1961. (iii) However, while computing the period of limitation, the period from 30.09.2019, when the petitioner made an application before the Advanced Ruling Authority till the date of receipt of a copy of this order shall be excluded. (iv) It is further directed that the petitioner shall submit an undertaking before this Court within a period of eight weeks from today to the effect that the petitioner shall not raise any jurisdictional issue before the 2nd respondent in terms of Section 245-RR and 245-Q of the Income Tax Act, 1961. (v) It is also directed that upon completion of assessment, if the 2nd respondent comes to the conclusion that the petitioner would be entitled to refund, the same shall be refunded / repaid to the petitioner within a period of three months from the date of passing appropriate orders by the 2nd respondent.
Sd/- JUDGE
Bmc/Srl.