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2023 DIGILAW 1265 (KAR)

Saudi Telecom Company v. Commissioner of Income Tax (International Taxation)

2023-11-02

B.M.SHYAM PRASAD

body2023
ORDER : 1. The petitioner has called in question the orders dated 20.07.2021 [Annexures-A, B and C] and these orders relate to rejection of the petitioner's application for stay during the pendency of the appeals filed by the petitioner calling in question the relevant assessment orders [2009-10, 2010-11 and 2011-12]. This Court has granted interim order staying the enforcement of the demand pursuant to the respective demand notices in the light of the submission that 20% of the demand has been deposited. 2. Sri. T. Suryanarayana, the learned Senior Counsel for the petitioner, submits that the dispute relates to the assessment orders for the assessment years 2009-10, 2010-11 and 2011-12 and the resolution of the dispute would depend on whether the amounts received by the petitioner from M/s. Vodafone Idea Limited could be charged to tax. The learned Senior Counsel submits that this question is no longer res-integra with the Division Bench's decision in ITA No.160/2015 and connected matters opining that such receipts would not be chargeable to tax, and the petitioner's appeals against the assessment orders before the Commissioner of Income Tax [Appeals]-12 will have to be decided in the light of the aforesaid decision and as such the petitioner has filed applications for early hearing and those applications are yet to be taken up. 3. Insofar as the present grievance, Sri. T.Suryanarayana submits that because of the turn of events the petition could be disposed of observing that in view of the Division Bench's order the authorities must not precipitate the demand consequent to the respective notices directing the Commissioner of Income Tax [Appeals] -12 to dispose of the appeals with liberty to the petitioner to seek refund of 20% of the tax deposited subject to the outcome of those appeals. 4. Sri. M. Dilip, the learned standing Counsel for the respondents, cannot controvert that if the assessment orders are only because of the payments received by the petitioner from M/s. Vodafone Idea Private Limited, the merits of such assessment orders will have to be necessarily examined in the light of the Division Bench's order in ITA No.160/2015 subject to the outcome in the proceedings that my be preferred by the Revenue against such order. Sri. Sri. M. Dilip, as regards the disposal of this writ petition, submits that because 20% of the demand is deposited, the petition could be disposed of taking this fact on record with liberty to the petitioner to avail remedy to receive refund subject to the outcome of the pending appeals. 5. These submissions are considered. The net effect of these submissions is that the petitioner's appeals as against the relevant assessment orders will have to be considered by the Commissioner of Income Tax [Appeals]-12 in the light of the Division Bench's order in ITA No.160/2015 and there cannot be precipitation for recovery of the demand especially with the petitioner having deposited 20% thereof. 6. Further, it would not be out of place to record that where the assessment orders have been called in question by the assessees in the writ petitions on the ground of jurisdiction, those writ petitions are being disposed of in the light of the Division Bench's order in ITA No.160/2015 but with liberty to the concerned assessees to seek revival of the petitions in the event the Revenue succeeds in the proceedings commenced before the Hon'ble Supreme Court as against the Division Bench's order. This liberty is reserved wherever, apart from the ground of jurisdiction, the ground such as violation of principle of natural justice and other grounds are urged. 7. In view of the same, it would be just to reserve liberty to the petitioner to seek early disposal of the pending appeals before the Commissioner of Income Tax [Appeals]-12. If the reason for the assessment and the present petition is the demand notices for recovery of 100% demand based on the impugned assessment orders, and if 20% of the demand is already deposited, it cannot be gainsaid that with the Division Bench's order in ITA No.160/2015, there cannot be further precipitation. In the light of this, the petition must be disposed of with certain liberty. Hence, the following: ORDER [a] The petition is disposed of. The petitioner is reserved liberty to request the Commissioner of Income Tax [Appeals] -12 to expeditiously consider the merits of the petitioner's case as against the corresponding assessment orders in the light of the orders of the Division Bench's order in ITA No.160/2015 and disposal of the writ petitions by the similar assessees in the other writ petitions. The petitioner is reserved liberty to request the Commissioner of Income Tax [Appeals] -12 to expeditiously consider the merits of the petitioner's case as against the corresponding assessment orders in the light of the orders of the Division Bench's order in ITA No.160/2015 and disposal of the writ petitions by the similar assessees in the other writ petitions. [b] The respondents until such consideration shall take any coercive measures to precipitate the subject demand under the respective notices.