Essar Communications Limited v. Union Of India & ORS.

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IN THE HIGH COURT OF DELHI AT NEW DELffl

+ W.P.(C) 13401/2019 ESSAR COMMUNICATIONS LIMITED Petitioner Through:

Mr. Ai-vind Datar, Sr. Adv. with Mr.Atul Shankar Mathiir, Mr. Prabal Meln-otra and Mr.Swapnil Tripathi, Advs.

versus Respondents Ms. Sunny Shangloo, Govt. Pleader with Mr. Shubliarn Gandhi, Adv.

Mr. Ruchir Bhatia,^ Sr. Standing UlNflON OF.INDIA & ORS.

Through:

counsel for Income. Tax with Ms.

Madhura Chandra and Mr.Shlok Chandra, Jr. Standing counsels.

W.P.(C) 13405/2019 ESSAR COM LIMITED Through:

Petitioner Mr. Arvind Datar, Sr. Adv. with Mr.Atul Shankar Mathur, Mr. Prabal AJehrotra and Mr.Swapnil Tripathi, Advs.

versus ..... Respondenis Ms. Sunny Shangloo, Govi. Pleader with Mr. Shubham Gandhi, Adv.

Mr. Ruchir: Bhatia, Sr. Standing UNION OF INDIA & ORS.

Through:

counsel for Income Tax with Ms.

Madhura Chandra and Mi'.Shlok Chandra, Jr! Standing counsels.

Ms. Shiva Lakshmi, CGSC.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR.

JUSTICE SANJEEV NARULA Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing.

ORDER

% 19.12.2019 CM APPL. 54402/2019 in W.P.rO 13401/2019 & CM APPL. 54409/2019 in W.P.lCl 13405/2019 (exemptions)

1. Exemptions allowed, subject to all just exceptions.

2. The applications stand disposed of.

CM APPL. S4401/2019 in W.P.tCl 13401/2019 & CM APPL. 54408/2019 in W.P.tCl 13405/2019

3. By these applications, the applicant seeks peimission to file additional documents on record. Accordingly, the applications are allowed and additional documents are taken on record.

W.P.rCl 13401/2019 & W.P.fCi 13405/2019

4. Mr. Datar, learned senior counsel for the petitioner submits that consequent upon the issuance of the impugned order dated 10.10.2019 by the Authority for Advance Ruling (Income Tax) in AAR 1373 and 1374 of 2012, the Assessing Officer (AO) has issued notices dated 23.10.2019 and 05.12.2019 for the purpose of carrying out the assessment. He submits that that the petitioner is willing to join the assessment proceedings. He, however, expresses an apprehension that the AO would feel bound by the prima facie findings returned by the Authority for Advance Ruling in relation to the alleged tax avoidance.

5. We make it clear that on a reading of the impugned order passed by the said authority, it is evident that the said findings are only prima facie, which means, that they are not final and binding, and that they have not been arrived at after detailed examination of the materials placed before the authority or upon consideration of the rival submissions.

6. Thus, it shall be open to the AO and the other statutory authorities to arrive at their own findings upon appreciation of the evidence and the

materials placed on record and they should be not bound by th.Q prima facie findings. While so observing, we also make it clear that we have not ourselves examined the merits of the said prima facie findings returned by the authority on the aspect of the tax avoidance.

7. Mr. Datar, submits that the issue that remains to be determined is whether the petitioner would be entitled to the benefit of the Indian-Mauritius Double Taxation Avoidance Treaty, and consequently to refund of tax deducted and paid by the purchaser of the shares in the year 2011. He, therefore, submits that the assessment proceedings may be expedited.

8. Mr. Bhatia, Sr. standing counsel who appears on advance notice states that assessment gets time barred on 31 December, 2020. In view of the aforesaid, we hope and expect that the AO would expedite the assessment proceedings and would pass the assessment order preferably, on or before, 30.06.2020, subject to the petitioner co-operating in the assessment proceedings and not taking any adjournments.

9. In view of the above, the petitions stand disposed of. VI?IN SANGHI, J SANJ^eS^ NARUl^, J DECEMBER 19, 2019 Pallavi