2017 (9) TMI 1530 - HC - Income Tax

Reopening of assessment - unexplained property - notice u/s 148 makes a reference of power of attorney holder - Held that - The words power of attorney holder have been used taking it from the sale deed executed by the petitioner where the consideration shown is of ₹ 3,76,963/- (mentioned as ₹ 3,67,963/- in the impugned notice) as against the value of the property to be ₹ 3,90,00,000/- on DLC rate, making difference of ₹ 3,86,23,037/-. The property aforesaid was shown to be asset of the petitioner in the balance sheet and he had executed the sale deed. If the petitioner is not the owner of the property then while executing the gift deed, why he had shown himself to be the owner. It is not such a case where reasons to believe recorded by the authority is without jurisdiction so as to invoke the extra ordinary jurisdiction of this Court. Writ petition is dismissed without causing interference in the impugned order as well as in the notice under Section 148 of the Act of 1961 given by the respondents. The petitioner would, however, be at liberty to take alternative remedy

Summary

Issues:
Challenge to notice under Section 148 of the Income Tax Act, 1961 and subsequent order dated 08th September, 2015.

Analysis:
The petitioner contested the notice under Section 148 of the Income Tax Act, 1961, claiming it was without jurisdiction. The notice disclosed a discrepancy in the sale of land, where the petitioner was shown as a power of attorney holder, leading to an incorrect assessment. The petitioner argued that the sale consideration should not be attributed to him as he was a power of attorney holder, not the landholder. The petitioner sought to set aside the notice and order, alleging lack of jurisdiction and authority on the part of the respondents.

The respondents, however, argued that the notice was rightly issued, citing references to the petitioner being referred to as a power of attorney holder in the sale deed and balance sheet. They emphasized that the petitioner had shown himself as the owner of the property in a gift deed, indicating ownership. The respondents contended that the notice was appropriately issued based on the information available, and urged the court to dismiss the writ petition.

The court examined the submissions of both parties and reviewed the record. It noted the discrepancy in the sale of land, where the petitioner was identified as a power of attorney holder, but had also claimed ownership in a gift deed. The court referenced previous judgments to determine the jurisdictional aspect of the case. It highlighted that the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India could be warranted if the notice or order was without jurisdiction.

Considering the arguments and legal precedents, the court found that the notice was not without jurisdiction, and there was no prima facie case for interference in the impugned order. The court dismissed the writ petition, allowing the petitioner to pursue alternative remedies. The court clarified that its opinion was preliminary and would not hinder the petitioner's pursuit of other legal avenues.

In conclusion, the court upheld the validity of the notice under Section 148 of the Income Tax Act, 1961, and the subsequent order dated 08th September, 2015, dismissing the writ petition while granting the petitioner the freedom to explore alternative remedies without prejudice.