High Court Division · Special Original Jurisdiction
OnMobile Global Limited v National Board of Revenue and others
Writ Petition 6604/2024 · Decided 28 July 2026
OnMobile Global Limited, an Indian company operating through a Bangladesh branch, challenged a notice of 13.05.2024 issued by the Inspecting Additional Commissioner of Taxes under section 213 of the Income Tax Act, 2023 to revise its assessment for the 2013-2014 assessment year. The Deputy Commissioner of Taxes had assessed it after audit in 2015 and, following appellate directions, issued revised orders in 2018 and 2023, the last of which merely credited tax deducted at source and advance tax and showed a refund. The Revenue argued that time ran from the 2023 order. The High Court Division held that the notice raised the same alleged errors as the 2015 assessment, so the four-year limit ran from that order and had long expired; the 2023 order contained no error attracting revision. As the action was arbitrary, in bad faith and without jurisdiction, the alternative remedies did not bar writ relief. The notice and the IACT's and DCT's orders of 29.05.2024 were declared without lawful authority.
- Q1
Whether a notice under section 213 of the Income Tax Act, 2023 to revise an assessment for the 2013-2014 assessment year was issued within the four-year limit in section 213(3).
- Q2
Whether a revised assessment order made only to give effect to appellate directions on tax credits could be treated as the order sought to be revised.
- Q3
Whether the availability of statutory appeals barred writ relief against the notice and the consequent orders.
- Under section 213(3) of the Income Tax Act, 2023, no revision order may be made after four years from the date of the order sought to be revised.
- Where the notice raises the same alleged errors as the original audit assessment of 2015, the four-year period runs from that assessment, and a notice issued in 2024 is beyond time.
- A revised assessment that only gives effect to appellate directions to credit tax deducted at source and advance tax, without changing total income, contains no error and is not subject to revisional jurisdiction under section 213.
- Where a statutory authority's action is ex facie illegal, mala fide, arbitrary or without jurisdiction, an alternative statutory remedy does not bar a petition under Article 102 of the Constitution.
Because the DCT committed no error in this final revised assessment order dated 25.04.2023, the order does not attract, nor is it subject to, any revisional jurisdiction by the IACT.
In the court’s own words.
Writ Petition 6604/2024, as published by the Supreme Court of Bangladesh. 25 pages, with paragraph numbers for citing.
1
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO.6604 OF 2024
IN THE MATTER OF:
An application under Article 102 of the
Constitution of the People's Republic of
Bangladesh.
And
IN THE MATTER OF:
OnMobile Global Limited
……Petitioner
-Vs-
National Board of Revenue and others
……. Respondents
Mr. Kazi Ershadul Alam, Advocate with
Mr. Md. Shafiqul Islam, Advocate
……..For the Petitioner
Mr. Akhtar Farhad Zaman, D.A.G. with
Mr. Md. Obaidur Rahman Tarek, D.A.G. with
Ms. Shadia Afrin Shapla, D.A.G with
Mr. Sovan Mahmud, A.A.G. with
Mr. Md. Faridul Islam, A.A.G. with
Mr. Md. Sarwar Alam Chowdhury, A.A.G and
Mr. Shahinoor Alam (Shahin), A.A.G
……. For the Respondents-Government.
Heard on 18.05.2026, 07.06.2026 & 19.07.2026
Judgment on 28.07.2026
Present:
Mr. Justice S.M. Maniruzzaman
And
Mr. Justice Dihider Masum Kabir
Dihider Masum Kabir, J:
1In this Rule Nisi, issued on 28.05.2024 under Article 102 of the Constitution of the People's Republic of Bangladesh, the respondents have been called upon to show cause as to why the impugned notice dated 13.05.2024 passed under Nothi No. 213 aviv/ct†it-1/KtAt-11/2023-2024/523 by respondent No.3 purportedly under section 213 of the Income Tax Act, 2023 to re-hear the proceeding regarding the Assessment Order issued by
respondent No.4 for the assessment year 2013-2014, shall not be declared to have been done without lawful authority and is of no legal effect as being in contravention of section 213(3) of the Act, 2023 and in derogation of the petitioner's fundamental rights enshrined under Articles 27, 31 and 40 of the Constitution of the People’s Republic of Bangladesh and/or pass such other or further order or orders as to this Court may seem fit and proper.
2At the time of issuance of the Rule, further operation of the impugned notice dated 13.05.2024 passed under Nothi No. 213 aviv/ct‡it- 1/KtAt-11/2023-2024/523 by respondent No.3 was stayed by this Court for a prescribed period.
3Facts, relevant for disposal of the Rule, in brief, are that the petitioner is a public company limited by shares duly incorporated under the laws of India and operating in Bangladesh through its branch office and engaged in the business of providing mobile entertainment products and solutions to telecom operators and media companies.
4For the assessment year 2013-2014, the petitioner filed its income tax return (in short, the return) under universal assessment scheme on 30.09.2013, disclosing total income of Tk.13,21,49,434/- which was assessed under section 82BB of the Income Tax Ordinance, 1984, (in short, the Ordinance). The return was subsequently selected for audit, and on 30.09.2015, the Deputy Commissioner of Taxes (in short, the DCT) completed the assessment under sections 82BB, 82BB(3) and 83(2) of the Ordinance, disallowing various expenses, assessing total income at Tk. 22,13,10,423/-, and demanding a tax of Tk. 9,54,40,120/- without adjusting
tax deducted at source (in short, TDS) and advance income tax (in short, AIT) by the petitioner.
5Challenging the said assessment order and demand, the petitioner preferred an appeal before the Commissioner of Taxes (Appeals), Taxes Appeal Zone-3, Dhaka [in short, the CT(A)] which was rejected on 25.02.2016 as barred by limitation.
6Being aggrieved by and dissatisfied with the order dated 25.02.2016, the petitioner preferred a second appeal before the Taxes Appellate Tribunal, Division Bench-4, Dhaka (in short, the Tribunal). Upon consideration of the said appeal, the Tribunal by an order dated 31.10.2016, remanded the matter to the CT(A) for disposal on its merits.
7Pursuant to the remand order, the CT(A) on 12.02.2018 directed the DCT to re-calculate interest following section 73 of the Ordinance and to modify the disallowed expenses as prescribed, and adjust/credit the TDS and AIT upon verification. However, the DCT issued a revised assessment order under sections 82BB, 82BB(3), 84 and 156 of the Ordinance on 04.03.2018 revising total income Tk.18,79,81,839/- without granting the required credits, issued demand notice demanding Tk.7,04,93,190/-.
8The petitioner challenged this revised order before the CT(A), which was again directed to the DCT on 19.03.2023 to credit the TDS and payments made under sections 64 and 158(2) of the Ordinance. Consequently, on 25.04.2023, the DCT issued a fresh assessment order of total income of Tk.18,79,81,839/- (identical amount on 04.03.2018) and demand notice confirming that the petitioner is entitled to a tax refund of Tk. 2,14,26,045/.
9Thereafter, the petitioner submitted representations dated 02.10.2023, 12.12.2023, and 13.03.2024 requesting adjustment of this refundable amount against outstanding tax liabilities for other assessment years under section 152 of the Ordinance. The respondents failed to dispose of these representations and instead issued the notice vide bw_ bs-213 aviv/ct†it-1/Kt At-11/2023-2024/523 dated 13.05.2024 under section 213 of the Income Tax Act, 2023 (in short, the Act). The petitioner sought an adjournment from respondent No.3 and moved this Court by filing writ petition on 26.05.2024 under Article 102 of the Constitution and obtained the instant Rule and interim order of stay on 28.05.2024.
10At the very outset, it is necessary to mention here that at the last stage of pronouncing of judgment and order the learned DAG produced photocopies of some documents which are a return of income, three assessment orders dated 30.09.2015, 04.03.2018 and 25.04.2023 with relevant demand notices and forms I.T.30 and order sheets for the assessment year 2013-2014. After pronouncement of judgment we find that last page of the order sheet contains the corresponding proceedings of the impugned notice which was beyond the knowledge of this Court. Neither, the petitioner nor the respondent-CT or the learned DAG informed the information to this Court. As such, unsigned judgment and order dated 16.06.2026 was re-called and the matter was fixed for further hearing.
11Respondent No.2, the Commissioner of Taxes, Taxes Zone-11, Dhaka (in short, the CT) filed an affidavit-in-opposition on 25.11.2025 stating, inter alia, that the submissions in the writ petition are incorrect, misconceived and misleading and are hence strongly denied by the
respondent. It is further stated that the impugned notice issued by respondent No. 3 is within the ambit of section 213 of the Act and pursuant to the order dated 25.04.2023, respondent No.3 did not violate the provisions enumerated in section 213(3) of the Act. This is because the appeal is a continuation of proceedings as the case was pending before CT(A) and the Tribunal from 14.12.2015 to 25.04.2023 and as such, the Rule is liable to be discharged.
12The CT further stated that in the assessment year 2013-2014, the assessee in its audited financial statements and the return of income reflected significant understated revenue and an excessive inflated cost. During assessment, the respondent found material discrepancies and unusual deviations between the audited accounts and the return submitted by the petitioner particularly comparing with previous assessment year 2012- 2013. It was found that the petitioner had shown approximately 21.66% lower revenue while claiming around 74.25% higher direct cost than the previous year which is ex-facie abnormal, unrealistic and commercially irrational and such anomalous and disproportionate deviations in revenue expenditure clearly indicates that the assessment was erroneous and prejudicial to the interest of the revenue. Therefore, the issuance of the notice under section 213 of the Act has been initiated within the statutory ambit of the said provision.
13The CT concluded its submission, stating that in the circumstances stated hereinabove, the proceeding impugned in the instant writ petition has been initiated as per law and no illegality has been committed thereby and there is no reason or basis for the petitioner to become aggrieved and there
is no reason to interfere with the initiation of the proceedings. Hence, the instant Rule is liable to be discharged.
14Thereafter, on 12.07.2026, the CT filed a supplementary affidavit-inopposition stating, inter alia, that some of documents were inadvertently omitted from the affidavit-in-opposition filed on 25.11.2025. The CT further stated that the order under section 213 of the Act for the assessment year 2013-2014 was passed on 29.05.2024 by the Inspecting Additional Commissioner of Taxes (in short, the IACT). Accordingly, the DCT revised the assessment order on the same date, 29.05.2024 under sections 82BB, 82BB(3), 83(2), and 156 of the Ordinance, read with section 213 of the Act, giving effect to the IACT's order dated 29.05.2024. Thereafter, the DCT issued and served the assessment order (Form I.T. 88), tax computation sheet (Form I.T. 30), and demand notice (Form I.T. 15) on 30.05.2024 vide registered post.
15In the said affidavit, it is further stated that the respondent came to learn from an advocate's certificate dated 02.06.2024 that a Rule Nisi had been issued on 28.05.2024 and an interim order of stay was granted in writ petition No. 6604 of 2024, challenging the notice under section 213 of the Act, which respondent No. 3 received on 04.06.2024.
16Mr. Kazi Ershadul Alam, the learned Counsel appearing for the petitioner submits that as per section 213(1) of the Act, the IACT may call for and examine the records if he considers that any order passed by the DCT is erroneous and requires amendment. However, section 213(3) provides that such power to amend an order cannot be exercised after expiring of 4 (four) years from the date of the issuance of an order. In the
instant case, respondent No. 4, the DCT completed the assessment on 30.09.2015 under sections 82BB, 82BB(3) and 83(2) of the Ordinance which was almost 9 (nine) years ago. Nonetheless, respondent No.3, despite being fully aware of the provisions of section 213 of the Act issued the impugned notice unlawfully and illegally to harass the petitioner.
17Mr. Alam further submits that for the sake of argument even if it is considered that respondent No.3 issued the impugned notice in connection with the order dated 25.04.2023 passed by the DCT which is albeit, issued pursuant to the order of the CT(A) dated 19.03.2023 and the same would be ultra vires the provision of section 213(1) of the Act as respondent No. 3 can only issue a notice under section 213(1) of the Act to rectify the erroneous order of respondent No.4 and cannot issue such a notice for the purpose of amending an order of the CT(A). As such, the impugned notice is liable to be set aside by this Court for being issued without legal authority and to meet the ends of justice.
18Mr. Alam next submits that the petitioner was never served with, nor had knowledge of, the subsequent orders passed on 29.05.2024 by the IACT and the DCT under section 213 of the Act. Specifically, the petitioner has not been served with the assessment order (I.T. 88), tax calculation sheet (I.T. 30), or demand notice (I.T. 15). Issuing the notice and the subsequent purported orders dated 29.05.2024 right after this Court passed an interim stay order on 28.05.2024 highlights severe arbitrariness in utter disregard of the law, driven by mala fide intention to harass the petitioner. Notably, the CT admitted (Annexure-7) that respondent No. 3 was notified of the interim stay order on 04.06.2024 but completely
ignored it. It is therefore humbly submitted that the ends of justice demand that this Court set aside the impugned notice and orders.
19Mr. Alam lastly submits that if an action lacks jurisdiction and a respondent acts beyond jurisdiction, the availability of an alternative forum will not be a bar to invoking jurisdiction under Article 102 of the Constitution of the People's Republic of Bangladesh. By travelling beyond section 213 of the Act, respondent No.3 acted beyond its jurisdiction and hence, the instant writ is maintainable and the Rule should be made absolute.
20On the other hand, Ms. Shadia Afrin Shapla, the learned Deputy Attorney General appearing for the respondents submits that the impugned notice dated 13.05.2024, as contained in Annexure-A, was issued merely for production of documents and to explain the facts on which the assessment order passed by the DCT has become erroneous. The petitioner has been afforded an opportunity to produce the required documents and explain the facts. The learned DAG next submits that under sub-section (1) of section 213 of the Act, only a notice has been issued and no tax has yet been assessed or demanded, that is, the matter is a very pre-matured stage of re-assessment under section 213 of the Act. The learned DAG then goes to argue that subsequently the orders of the IACT and the DCT was passed on 29.05.2024; the petitioner may invoke the alternative statutory remedies available under sections 285, 286, 291, and 293 of the Act. In the instant case, the petitioner without replying to the notice and without exhausting the initial stage of proceeding has invoked the writ jurisdiction under Article 102 of the Constitution of the People’s Republic of Bangladesh. In
support of this contention, the learned DAG relied on the case of Commissioner of Customs, Excise and VAT -vs- Syed Nurul Arefeen reported in 29 BLC (AD) 136 wherein it was held:
“Since the statute provided efficacious alternative remedy to
the aggrieved persons and statute itself contains a mechanism
for redressal of grievance and in the writ petitioners did not
raise any point, writ petitioners should avail the statutory
remedy provided in the statute.”
21The learned Deputy Attorney General next submits that the original assessment was made on 30.09.2015 against which appeals were preferred by the petitioner twice and the assessment orders were subsequently revised by the DCT on 04.03.2018 and lastly on 25.04.2023, following the directions of the appellate authority. The aforementioned three assessment orders constitute a continuation of the assessment proceedings for the assessment year 2013-2014. The IACT, under section 213 of the Act, issued the notice on 13.05.2024 and passed the order on 29.05.2024, which are well within the four-year limitation period calculated from the date of the last revised order dated 25.04.2023, within the purview of sub-section (3) of section 213 of the Act.
22The learned Deputy Attorney General lastly submits that there has been no violation of section 213 of the Act. The IACT acted legally and within his jurisdiction for the purpose of protecting and recovering government revenue, devoid of any mala fide or arbitrary intention. Consequently, the instant Rule is liable to be discharged.
23We have heard the learned Counsel for the petitioner and the learned Deputy Attorney General for the respondents, have perused the writ petition, a supplementary affidavit by the petitioner, affidavit-in-opposition and a supplementary affidavit-in-opposition submitted on behalf of respondent No.2, the Commissioner of Taxes, relevant materials on record appended thereto and consulted the relevant provisions of law.
24On perusal of the writ petition and affidavit in opposition, it is revealed that the petitioner challenged the notice issued under section 213 of the Act which is reproduced here as under for ready reference:
welq: 213 avivi Kvh©µg Mªn‡Yi cybt ïbvbx avh©KiY cÖm‡½|
Dch©y³ wel‡qi cÖwZ Avcbvi `„wó AvKl©Y KiwQ|
1) Ki`vZv †Kv¤úvbxi 2013-2014 Kie‡l©i Ki wba©viYx Av‡`‡k †iwfwbD
cÖvwß (‡bvU-16) m¤ú‡K© Dc Ki Kwgkbvi I cwi`k©x †iÄ-1 Kg©KZ©vi †Kvb
ch©‡e¶Y e¨ZxZ Ki gvgjv wb®úwË Kiv ÎywUc~Y© n‡q‡Q|
2) Ki`vZv †Kv¤úvbxi 2013-2014 Kie‡l© 2012-2013 Kie‡l©i Zyjbvq Kg
†iwfwbD cÖ`wk©Z n‡q‡Q| A_©vr Avq n«vm †c‡q‡Q (Uvt 36,83,99,941 –
Uvt 29,04,31,290/-) = Uvt 7,79,68,651/- (21.16% n«vm)|
†gvevBj †dvb e¨envi D‡jøL‡hvM¨ cwigv‡Y e„w× cvIqv ¯^‡šÆJ †iwfwbD n«vm
cvIqv Aev¯Íe I MÖnY‡hvM¨ bq| D³ wel‡q Dc Ki Kwgkbvi Ges cwi`k©x
†iÄ-1 Kg©KZ©vi †Kvb ch©‡e¶Y M„nxZ nqwb weavq Kiv‡`kwU ÎywUc~Y© n‡q‡Q|
3) wbixw¶Z wnmve weeiYx‡Z cÖ`wk©Z Direct Cost (‡bvU-17-20) e„w×
†c‡q‡Q 74.25% hv †iwfwbD n«v‡mi (21.16%) mv‡_ †Kvb µ‡gB
mvgÄm¨c~Y© bq weavq e„w× Aev¯Íe, A‡hŠw³K I MÖnY‡hvM¨ bq| DwjøwLZ
wel‡q Dc Ki Kwgkbvi Ges cwi`k©x †iÄ-1 Kg©KZ©vi †Kvb ch©‡e¶Y bv
_vKvq Kiv‡`kwU ÎywUc~Y© n‡q‡Q|
25ewY©Z wel‡q Z_¨/cÖgvYvw` `vwLj I e¨vL¨v cÖ`v‡bi Rb¨ AvMvgx 19/05/2024
26wLªt ZvwiL cybt ïbvbx w`b avh© Kiv n‡jv| H w`b Avcbvi cÖwZôv‡bi c‡¶ †KD
27nvwRi bv n‡j ivR¯^ D×v‡ii Rb¨ AvBb Abyhvqx 213 avivi gvgjv wb®úwË Kiv
28n‡e|
29RvZxq ivR¯^ Avni‡Yi ¯^v‡_© Avcbvi mn‡hvwMZv GKvšÍ Kvg¨|
30weªt`ªt- 2013-2014 Kie‡l© Ki`vZv †Kv¤úvbxi AvqKi Av‡`k (AvB,wU-88)
31ch©v‡jvPbv K‡i ewY©Z ÎywU/weP¨ywZ cwijw¶Z nIqvq AvqKi AvBb 2023 Gi
32213 avivi Kvh©µg MÖnY K‡i 30/04/2024 wLªt ZvwiL AÎ Kvh©vjq n‡Z
33me©‡kl Kie‡l©i wiUv‡Y© D‡jøwLZ wVKvbvq †Kv¤úvbx‡K cÎ †`qv nq| cieZ©x‡Z
34147 avivq m‡iRwg‡b cwi`k©b Kv‡j †`Lv hvq †Kv¤úvbxwUi wVKvbv cwieZ©b
35n‡q‡Q| ZvB cwiewZ©Z wVKvbvq cybt wPwV ‡cÖiY K‡i 213 avivi Kvh©µg MÖnY
36Kiv n‡jv|
37In the instant case, on 30.09.2013, the petitioner filed its return disclosing a total income of Tk.13,21,49,434/- under the universal selfassessment scheme, which was assessed under section 82BB of the Ordinance. Subsequently, based on an audit, the return was reassessed on 30.09.2015 by the DCT under sections 82BB, 82BB(3) and 83(2) of the Ordinance. The DCT, after examining supporting evidence such as certificates of bill receipts, bank statements, copies of chalans and other verifiable documents, accepted Revenue (Note-16) at 29,04,31,290/-. However, after disallowing a number of claimed expenses under different heads of the trading and profit and loss accounts, the DCT assessed the total income at Tk.22,13,10,423/- and demanded taxes amounting to Tk. 9,54,40,120/- (including the imposition of interest at Tk. 1,24,48,711/-). The DCT did not provide credit for or adjust the TDS amount of
Tk.2,93,46,539/- and the AIT of Tk.5,30,28,596/-, totaling Tk. 8,23,75,135/-, stating that this amount would be credited after verification by the Inspector of Taxes. The relevant portion of the assessment order is quoted below for ready reference:
38“evwYwR¨K wnmve ch©v‡jvPbvt
Kiel©t 2012-2013 Kiel©t 2013-2014
39‡iwfwbD (‡bvU-16)… Uvt 36,83,99,941/- Uvt 29,04,31,290/-
40WvB‡i± Kó… Uvt 4,68,56,870/- Uvt 8,16,49,834/-
41MÖm cÖwdU… Uvt 32,15,43,071/- Uvt 20,87,81,456/-
t 87.28% t 71.88%
42Ki`vZv †Kv¤úvbx ‡UwjKg mvwf©‡mm e¨emvq wb‡qvwRZ| wej cÖvwßi ¯^c‡ÿ
43cÖZ¨qbcÎ, e¨vsK weeiYx, Pvjv‡bi d‡UvKwc Ges hvPvB‡hvM¨ KvMRcÎ `vwLj
44Kiv nBqv‡Q| cÖ‡qvRbxq KvMR cÎ Øviv mgw_©Z weavq cÖ`wk©Z cÖvwß gvwbqv
45†bIqv nBj| WvB‡i± Kó cÖ`wk©Z nBqv‡Q 8,16,49,834/- UvKv hvnvi ¯^c‡ÿ
46AvswkK wej-fvDPvi I cÖgvbvw` `vwLj Kiv nBqv‡Q| m¤ú~b© hvPvB‡hvM¨ cÖgvbvw`
47`vwLj bv Kivq WvB‡i± Kó hvPvB‡hvM¨ bq| Ab¨ w`‡K MÖm gybvdvi nviI
48c~e©eZx© eQ‡ii Zzjbvq A‡bK Kg cÖ`wk©Z nBqv‡Q| GgZve¯’vq cÖvwß wnmve m¤ú~Y©
49hvPvB‡hvM¨ cÖZxqgvb bv nIqvq wb¤œiƒc fv‡e cÖvwß wnmve nB‡Z AMÖvn¨ Kiv nBjt
50————————————————————————–
51————————————————————————–
52Dr‡m Ki †µwWU cÖ`vb cÖm‡½ t
53Ki`vZv †gvU wej cÖvß n‡q‡Qb 29,04,31,290/- UvKv, hvnvi wecix‡Z Dr‡m
54Ki KZ©b cÖ`k©b Kiv n‡q‡Q 8,23,75,134/- UvKv| cÖZ¨qb c‡Îi d‡UvKwc
`vwLj Kiv nBqv‡Q| Ki cwi`k©K Øviv Pvjvb †dwiwd‡Kkb Ges miKvix
†KvlvMv‡i Rgv wbwðZ Kivi ci †µwWU cÖ`vb Kiv n‡e|Ó
55In the aforementioned assessment order, it, however appears that the DCT accepted the disclosed revenue (Note-16) of Tk.29,04,31,290/- after examining supporting papers and documents, such as certificates of bills received, bank statements, and copies of challans etc. and disallowed a number of claimed expenses under different heads of the trading and profit and loss accounts due to the non-production of required supporting evidence.
56Furthermore, it is patently clear that the DCT acted illegally, arbitrarily and with mala fide intention by failing to credit the claimed TDS and AIT paid by the petitioner, despite having verified the same, while simultaneously imposing interest on the tax payable amount. Such conduct is wholly arbitrary and untenable from a revenue authority, particularly under the oversight of its supervising and controlling officers. This failure to act in accordance with the law completely undermines the legitimate expectations of the taxpayer and erodes public confidence in the administrative integrity of the revenue authorities.
57Thereafter, the CT(A), by an order dated 12.02.2018, directed respondent No. 4 (the DCT): (i) to charge simple interest in accordance with section 73 of the Ordinance; (ii) to disallow the claimed expenses under different heads of the trading, profit, and loss accounts in a modified form; and (iii) to credit the claimed TDS and AIT paid by the petitioner to the Government Exchequer upon verification. The relevant portion of the appellate order is quoted below for ready reference:
582bs AvcwËi wel‡q wm×všÍ t
59“AvqKi Aa¨v‡`k 1984 Gi 73 avivi weavb †gvZv‡eK Kvh©µg MÖnY Kivi Rb¨
60Dc Ki Kwgkbvi‡K wb‡`©k cÖ`vb Kiv n‡jv|Ó
613bs AvcwËi wel‡q wm×všÍ t jvf-ÿwZ wnmv‡ei wewfbœ Lv‡Z `vexK…Z LiPvw`
62n‡Z LiP AMÖvn¨KiY m¤úwK©Z|
“mvwe©K ch©v‡jvPbvq I we‡eP¨ e‡l©i e¨emv‡qi cwigvb I AZxZ †iKW©
63we‡ePbvq jvf-ÿwZ wnmv‡ei wewfbœ Lv‡Z AMÖvn¨K…Z AsK mg~n wb¤œwjwLZfv‡e
64n«vm/envj/we‡jvc Kivi Rb¨ Dc-Ki Kwgkbvi‡K wb‡`©k ‡`Iqv n‡jv t Li‡Pi LvZmg~n `vexK…Z LiP Dc-Ki Kwgkbvi Avcxj Av‡`k Abymv‡i
KZ©„K AMÖvn¨K…Z AMÖvn¨K…Z LiP
LiP
65weR‡bm 1,74,25,877/- 1,74,25,877/- Avjv`v fv‡e we‡ewPZ| †W‡fjc‡g›U Awdm iÿbv‡eÿY 50,08,133/- 10,00,000/- 6,00,000/- Uªv‡fwjs LiP 12,78,420/- 4,00,000/- 3,00,000/- Av`vi LiP 56,66,664/- 15,00,000/- 10,00,000/- Kwgkb Uz †jvKvj 49,92,960/- 10,10,000/- 8,00,000/cvU©bvi K‡cv©‡iU Kó 4,66,88,370/- 4,66,88,370/- Avjv`vfv‡e we‡ewPZ| GGgwm LiP 26,62,881/- 5,00,000/- 3,00,000/- Kb‡U›U Kó 2,73,05,623/- 50,00,000/- 30,00,000/-
GgZve¯’vq, Dc Ki Kwgkbvi KZ©K
„ weR‡bm ‡W‡fjc‡g›U Lv‡Z
661,74,25,877/- UvKv AMÖvn¨KiY m¤ú~Y© we‡jvc Kivi Rb¨ wb‡`©k cÖ`vb Kiv
67n‡jv|
AvcwËi †cÖwÿ‡Z AvqKi bw_i †iKW© cixÿv Kiv n‡jv| AvqKi
Aa¨v‡`k 1984 Gi 30 Gi (wR) avivi weavbwU wb¤œiƒct-
“Any expenditure exceeding 10% of the net profit
disclosed in the statement on accounts under the Head office
expenses by a company, not incorporated in Bangladesh under
‡Kv¤úvbx AvBb, 1994 m‡bi 18 bs AvBb)”
AvqKi bw_i †iKW©, Dc Ki Kwgkbv‡ii ch©‡eÿb I Ki`vZvi
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Awdm wKbv; D³ LiPwU cÖavb Kvh©vj‡qi Li‡Pi mv‡_ m¤úwK©Z wKbv; GB welq
¸wj hvPvB-evQvB K‡i Ki`vZv‡K e¨vLv `v‡bi my‡hvM w`‡q GB wel‡q AvBbvbyM
Kvh©µg MÖnY Kivi Rb¨ Dc Ki Kwgkbvi‡K wb‡`©k cÖ`vb Kiv n‡jv|Ó
5 bs AvcwËi wel‡q wm×všÍ t
“Ki`vZv †Kv¤úvbx KZ©K
„ Dr‡m KwZ©Z Ki miKvix †KvlvMv‡i Rgv`v‡bi
welqwU wbwðZ n‡q hvPvB mv‡c‡ÿ †µwWU cÖ`vb Kivi Rb¨ Dc Ki Kwgkbvi ‡K
wb‡`©k cÖ`vb Kiv n‡jv|Ó
68Disregarding the explicit directions of the CT(A) concerning the verification and crediting of TDS and AIT, respondent No. 4 issued a revised assessment order, demand notice, and Form I.T. 30 on 04.03.2018, determining total income at Tk. 18,79,81,839/- and tax payable at Tk.7,04,93,190/-. It is evident from the record that no higher administrative authority has called the DCT to account for defying the appellate authority's lawful directives, resulting in unmitigated harassment of the assessee-petitioner.
69Being aggrieved, the petitioner preferred another appeal before the CT(A), principally seeking tax credit for Tk.9,19,19,234/-. The petitioner
submitted complete documentary evidence of these payments, which had been disclosed in the original return filed on 30.09.2013 and duly admitted by the DCT in the assessment order dated 30.09.2015.
70By an order dated 19.03.2023, the CT(A) directed respondent No. 4 to verify and credit the TDS challans totaling Tk.2,93,46,539/-. The appellate authority also directed the respondent to credit tax payments of Tk.6,25,72,696/- made under sections 64 and 158(2) of the Ordinance, the relevant extract of which is quoted below for ready reference:
714 bs AvcwË t Ki`vZv †Kv¤úvbxi cwi‡kvwaZ AvqKi 9,19,19,234/- UvKvi
72†µwWU cÖ`vb bv Kiv m¤úwK©Z|
“ewY©Z Ae¯’vi †cÖwÿ‡Z †`Lv hvq †h, Grameen Phone KZ©„K
731,34,73,608/- UvKv, Air Tell KZ©„K 86,91,861/- UvKv Ges
74Banglalink KZ…©K 2,93,46,538.90/- UvKvmn †gvU
752,93,46,538.90/- UvKvi Pvjv‡bi b¤^i †`Iqv Av‡Q| Pvjvb¸wj Ki
76cwi`k©K Øviv hvPvB K‡i †µwWU †`Iqvi Rb¨ Dc Ki Kwgkbvi‡K wb‡`©k cÖ`vb
77Kiv n‡jv Ges 64 I 158(2) avivq cwi‡kvwaZ AvqKi 6,25,72,696/-
78UvKvi Pay Order mv‡K©‡j Rgv Ki‡j mv‡K©j KZ©K
„ miKvix †KvlvMv‡i Rgv
79K‡ib hvi Pvjvb bs-914, AvqKi 95,44,105/- UvKv ZvwiLt 23-08-2016,
80Pvjvb bs-608, AvqKi 2,62,10,874/- UvKv ZvwiLt 01-01-2013, Ges
81Pvjvb bs-435, AvqKi 2,68,17,722/- UvKv ZvwiLt 18-11-2012 †gvU
82AvqKi 6,25,72,696/- UvKv| GgZve¯’vq, 64 I 158(2) avivq cwi‡kvwaZ
83AvqKi 6,25,72,696/- UvKvi Pvjvb mv‡K©‡j Rgv n‡q‡Q weavq D³ UvKvi
84†µwWU cÖ`v‡bi Rb¨ Dc Ki Kwgkbvi‡K wb‡`©k cÖ`vb Kiv n‡jv|Ó
Accordingly, on 25.04.2023, respondent No. 4 issued a revised assessment order determining the total income of Tk.18,79,81,839/- (which remained identical to the income as revised on 04.03.2018), along with a demand notice confirming that the petitioner is entitled to a refund amounting to Tk. 2,14,26,045/-.
85It is pertinent to mention here that the IACT issued the impugned notice on 13.05.2024 under section 213 of the ACT, relying on the revised assessment order dated 25.04.2023, which exhibits no error. While the notice falls within the four-year limitation period prescribed under of subsection (3) of section 213 of the Act, the contents of the impugned notice reiterate erroneous grounds that are identical to those contained in the reassessment order dated 30.09.2015 based on an audit.
86In fact, there was no change in the total income; the aforementioned revised assessment order reveals that the DCT merely credited the TDS amount and the tax paid under sections 64 and 158(2) of the Ordinance after verifying the challans, as directed by the CT(A).
87Before delving into the core issue, it is expedient to examine section 213 of the Act, which is reproduced below for ready reference:
Ask 13
ivR¯^ duvwK cybiæ×vi
88212| Ki I Ab¨vb¨ AsK cwi‡kva GovBqv hvIqv|-
——————————————————————–
——————————————————————
89213| ÎæwUc~Y© Av‡`k ms‡kva‡bi †ÿ‡Î cwi`kx© AwZwi³ Ki Kwgkbv‡ii
ÿgZv|-
901. cwi`kx© AwZwi³ Ki Kwgkbvi, hw` we‡ePbv K‡ib †h, Dc Ki
91Kwgkbvi KZ…©K cÖ`Ë Av‡`k ÎæwUc~Y© Ges Zvnv ivR¯^ ¯^v‡_©i
92cwicwš’, Zvnv nB‡j wZwb GB AvB‡bi Aaxb cwiPvwjZ Kvh©µ‡gi
93†iKW© Zje I cixÿv Kwi‡Z cvwi‡eb Ges Ki`vZv‡K kybvwbi
94my‡hvM cÖ`vb Kwiqv Ges †hBiƒc cÖ‡qvRb we‡ePbv Kwi‡eb †mBiƒc
95Z`šÍ Kwievi ev KivBevi ci cwiw¯’wZi wbwi‡L Zvnvi we‡ePbvq
96†hBiƒc Av‡`k cÖ`vb b¨vqmsMZ nB‡e, †mBiƒc Av‡`k Rvwi Kivmn
97Ki wba©viYx Av‡`k cwiea©b ev cwieZ©b ev evwZj Kwiqv b~Zbfv‡e
98Ki wba©viY Kwievi Rb¨ Av‡`k Rvwi Kwi‡Z cvwi‡eb| 2. †Kv‡bv DaŸ©Zb AvqKi KZ…©cÿ aviv 12 Gi Aaxb DcKi
99Kwgkbv‡ii ÿgZv cÖ‡qvM Kwi‡j Ki Kwgkbvi Dc-aviv (1) G
100DwjøwLZ Kvh©µg cwiPvjbv Kwi‡eb| 3. †Kv‡bv Av‡`k Rvwii ZvwiL nB‡Z 4 (Pvi) ermi AwZµg nBevi
101ci Zvnv ms‡kva‡bi Rb¨ Dc-aviv (1) Gi Aaxb †Kv‡bv Av‡`k
102Rvwi Kiv hvB‡e bv| 4. aviv 212 Gi †Kv‡bv wKQzB, cÖ‡hvR¨ †ÿ‡Î, GB avivi Aaxb †Kv‡bv
103Kvh©µg MÖnY‡K evwiZ Kwi‡e bv| 5. GB avivq †Kv‡bv Av‡`k ÎæwUc~Y© wnmv‡e MY¨ nB‡e hw` cwi`kx©
104AwZwi³ Ki Kwgkbvi g‡b K‡ib †h,-
105(K) Av‡`‡k Av‡qi LvZ fzj nBqv‡Q;
(L) Av‡`k Rvwii †ÿ‡Î, GB AvB‡bi †Kv‡bv weav‡bi fzj e¨vL¨v
Kiv nBqv‡Q;
(M) hvPvB Kwievi Avek¨KZv _vKv m‡Ë¡I †Kv‡bviƒc hvPvB bv
Kwiqv Av‡`k Rvwi Kiv nBqv‡Q;
(N) `vweK…Z Qv‡oi wel‡q †Kv‡bviƒc Z`šÍ bv Kwiqv Qvo gvwbqv
Av‡`k Rvwi Kiv nBqv‡Q;
(O) Av‡`‡k †evW© KZ…©K aviv 10 Gi Aaxb RvixK…Z †Kv‡bv
Av‡`k, wb‡`©©k ev wb‡`©kbv cwicvjb ev AbymiY Kiv nq
bvB; ev
(P) †iKW© nB‡Z ¯úóZ cÖZxqgvb nq †h, Av‡`kwU ÎæwUc~Y©|
106A plain reading of the above provisions, it is revealed that the IACT is empowered to revise an erroneous assessment order passed by the DCT, provided it is prejudicial to the interests of the revenue. This power may be exercised after giving the assessee an opportunity of being heard to justify the assessment order, and it includes the authority to enhance, modify, or cancel the assessment and direct a fresh assessment to be made. As per subsection (3) of section 213, no order shall be made under sub-section (1) after the expiry of four years from the date of the order sought to be revised. Furthermore, sub-section (5) of section 213 specifies the criteria for determining what constitutes an erroneous assessment order requiring revision under this section.
107A combined reading of section 213 of the Act alongside the facts and circumstances of the case demonstrates that respondent No. 3, the IACT
issued the notice concerning the assessment passed by the DCT in its order dated 30.09.2015. The notice stated that the DCT had accepted the disclosed revenue (Note-16) at Tk.29,04,31,290/- whereas it was Tk. 36,83,99,941/- in the previous assessment year and objected to the increase in direct costs (Note-17-20) to 74.25%, totaling Tk.8,16,49,834/- whereas it was Tk. 4,68,56,870/- in the previous assessment year. However, the IACT completely overlooked or ignored the fact that the DCT had already disallowed Tk. 5,31,98,370/- from the total direct expenses of Tk. 8,16,49,834/. This means the DCT only allowed direct costs of Tk. 2,84,51,464/- and added back Tk. 5,31,98,370/- to the total income. The DCT assessed the total income at Tk. 22,13,10,423/- in its original order dated 30.09.2015. It is abundantly clear that if this assessment order of the DCT was deemed erroneous under sub-section (5) of section 213 of the Act, it had to be revised within four years. Consequently, by issuing the notice on 13.05.2024, the IACT acted far beyond the four-year limitation period calculated from the DCT’s original assessment order dated 30.09.2013 under section 82BB and after audit the assessment order dated 30.09.2015 under sections 82BB, 82BB(3) and 83(2) of the Ordinance.
108The assessment order of the DCT dated 04.03.2018 was a revised assessment order passed giving effect to the directions contained in the order of the CT(A) dated 12.02.2018. Crucially, the CT(A) had not given any directive to the DCT to estimate income or reduce expenses afresh. In the appellate order dated 12.02.2018, the CT(A) merely directed the DCT to disallow the claimed expenses in a modified form and to credit the claimed TDS and AIT paid by the petitioner upon verification. Instead, the
DCT acted in arbitrary defiance of the appellate directions by failing to grant the due tax credits. While this specific omission by the DCT was indeed erroneous and fell within the scope of sub-section (5) of section 213 of the Act, the IACT remained entirely silent on that aspect. As the controlling and monitoring authority of the DCT, the IACT completely failed to perform his statutory duty and function in that regard.
109Furthermore, there was no structural change made to the assessment by the DCT in its subsequent order dated 25.04.2023; the revised total income remained identical at Tk. 18,79,81,839/- in both the orders passed on 04.03.2018 and 25.04.2023. In the later appellate order dated 19.03.2023, the CT(A) again directed the DCT to adjust/credit the claimed TDS and advance tax upon verification. In compliance, the DCT, vide order dated 25.04.2023, revised form I.T. 30, verified and credited the claimed TDS and advance tax, and issued a demand notice confirming that the petitioner is entitled to a refund amounting to Tk.2,14,26,045/-. Because the DCT committed no error in this final revised assessment order dated 25.04.2023, the order does not attract, nor is it subject to, any revisional jurisdiction by the IACT.
110It, however, appears that the IACT issued the impugned notice dated 13.05.2024 arbitrarily and in bad faith. Such an act is treated as ultra vires, and such conduct from a senior officer undermines the legitimate expectations of the taxpayer while eroding public confidence in the administrative integrity of the revenue authorities.
111Assessment orders issued by the DCT on 30.09.2013 and 30.09.2015 are subject to modification or revision under section 213 of the Act only if
found to be erroneous, and provided such action is taken within four years from the date of the order sought to be revised. The relevant original and revised assessment orders are summarized below for ready reference:
112Date of Income Tax demanded Sections of
113assessment assessed assessment
11430.09.2013 13,21,49,434/- Paid 8,23,75,134/- 82BB
Order of the
DCT
11530.09.2015 22,13,10,423/- 9,54,40,120/- 82BB, 82BB(3)
Order of the (TDS and AIT of and 83(2)
DCT based on Tk.8,23,75,135/- was
an audit not credited, instead
imposed interest
Tk.1,24,48,711/-)
11604.03.2018 18,79,81,839/- 7,04,93,190/- 82BB, 82BB(3)
(Revised (TDS and AIT was 84 and 156
pursuant to not credited or
appellate adjusted in arbitrary
direction, instead defiance of appellate
of order of the direction)
DCT)
11725.04.2023 18,79,81,839/- Refundable 82BB, 82BB(3)
No changed, 2,14,26,045/- 84, 156 and 156
Identical income [Appellate direction
as per order (2nd time) was
dated followed]
04.03.2018)
118Without due regard for the facts and circumstances of the case or the applicable legal provisions, the IACT, who succeeded the officer who issued the impugned notice, passed an order on 29.05.2024 under section
213 of the Act, the relevant portion of which is reproduced below for ready reference:
1194| AwWU wi‡cv‡U© cÖ`wk©Z Ki`vZv-‡Kv¤úvbxi weMZ K‡qK eQ‡ii †iwfwbD cwiw¯’wZ wb¤œiƒc t
Kiel© †iwfwbD cÖvwß
2009-2010 2,42,34,125/-
2010-2011 5,94,68,707/-
2011-2012 21,23,84,080/-
2012-2013 36,43,99,941/-
2013-2014 29,04,31,290/
120cÖv°wjZ †iwfwbD cÖvwß UvKv 95,00,00,000/-
121(2011-2012 Kiel©‡K wfwË we‡ePbvq)
122ev` t Aby‡gvw`Z LiP (1/3) UvKv 31,66,66,667/-
123(wnmv‡ei LvZv-c‡Îi AeZ©gv‡b)
124————————————————————————
‡gvU Avq UvKv 63,33,33,333/-
125Ki cwiMYbvt †gvU Avq Gi Dci 37.50% nv‡i cÖ‡hvR¨ Ki
126(63,33,33,333/- X 37.50%) = UvKv 23,74,99,999/-
127Thereafter, the DCT also imposed simple interest at Tk.1,91,50,053/on 29.05.2024.
128On a plain examination of the order, it is evident that the IACT acted arbitrarily and in bad faith. It is unfortunate that a senior officer has failed to discharge his/her statutory functions and duties in accordance with the law.
129Conversely, the learned DAG challenged the maintainability of the writ petition, contending that filing a writ petition against a mere notice is premature. She further submitted that since subsequent proceedings, namely, the final orders were ultimately passed by the IACT and the DCT
on 29.05.2024, the petitioner ought to exhaust the alternative statutory remedies available under sections 285, 286, 291, and 293 of the Act. In support of her contention, she relied on the case of Commissioner of Customs, Excise and VAT -vs- Syed Nurul Arefeen, reported in 29 BLC (AD) 136. However, considering our findings made hereinabove, we find no merit in the submissions advanced by the learned DAG in this regard.
130It is a well-settled principle of law that where the impugned action of a statutory authority is ex-facie illegal, mala fide, arbitrary, or without jurisdiction, the availability of an alternative statutory remedy does not operate as a bar to invoking the extraordinary jurisdiction of this Court under Article 102 of the Constitution.
131In light of the facts and circumstances of the case and the applicable statutory provisions, we hold that the present matter falls squarely within the established exceptions, making it properly amenable to our jurisdiction under Article 102 of the Constitution.
132This view finds authoritative support in British American Tobacco Bangladesh Co. Ltd. -vs- National Board of Revenue (NBR), 25 BLC (AD) 49, where the Appellate Division held:
133"Alternative remedy—when the entire action of the VAT
134authority appears to be illegal, mala fide and arbitrary on the
135face of the record, invoking Article 102 of the Constitution
136under such circumstances, without preferring a statutory
137appeal, is no bar."
138Further reliance may be placed on Secretary, Ministry of Finance -v- Yahya AZ Khondoker, 29 BLC (AD) (2024) 181, wherein it was observed:
"Albeit, this must be borne in everyone's mind and work too
that Government in its generic sense is not a merely business
or commercial entity in the realm of crony capitalism. It is a
super-institution which initiates the laws and policies for the
whole country and such laws are to be obeyed by everybody
including Government itself… Procedural fairness too should
be observed on the very face of it instead of whim."
139Accordingly, we find merit in the submissions advanced by the learned Counsel for the petitioner.
140In the Result, the Rule is made absolute.
141However, there shall be no order as to costs.
142The impugned notice dated 13.05.2024 issued by respondent No.3 vide bw_ bs-213 aviv/ct †it-1/Kt At-11/2023-2024/523 under section 213 of the Income Tax Act, 2023 (Annexure-A) and subsequent orders passed by the IACT and the DCT dated 29.05.2024 (Annexure-2, 3, 4 and 5) are declared to have been issued without lawful authority and is of no legal effect.
143Communicate the judgment and order to the respondents concern at once. S.M. Maniruzzaman, J
I agree.
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