2021 (8) TMI 884 - HC - Income Tax

Validity of reopening of assessment u/s 147 - writ petition on the ground that the jurisdictional fact for issuance of such notice is absent - HELD THAT - We do not appreciate the attempt of the petitioner to have the notice u/s 148 of the Act interdicted by presenting this writ petition on the same day of lodging of objection to the notice by submitting a detailed reply. Obviously, the objection was intended to persuade the Assistant Commissioner to revoke the impugned notice. On the contrary, if indeed the petitioner perceived that there was no justification for the Assistant Commissioner to issue the impugned notice since the jurisdictional fact was absent, the petitioner could have raised the said point at the first instance before this Court prior to submitting to the jurisdiction of the Assistant Commissioner. Petitioner appears to have pursued the writ remedy as a parallel remedy, which is impermissible in law. Now, with the pleadings on record, it does appear to us, at least, prima facie, that the contention of the petitioner of an error of jurisdictional fact having vitiated the proceedings initiated by the Assistant Commissioner is not tenable. As decided in Rajesh Jhaveri Stock Brokers (P.) Ltd 2007 (5) TMI 197 - SUPREME COURT the Supreme Court analysed the provisions of Section 147 of the Act and observed that if the condition precedent for invocation of powers under Section 147 read with Section 148 to 152 of the Act is present, i.e., there is prima facie finding that income assessable to tax has escaped notice, it would be open to the assessing officer to proceed for reopening of the assessment proceedings. We also find from such decision that if the assessing officer has cause or justification to know or suppose that income has escaped assessment, it can be said that he has reason to believe that an income has escaped assessment. In such a case, the High Court would not be clothed with the jurisdiction to examine the reasons which weighed in the mind of the assessing officer to issue the notice. As has correctly been contended by Ms. Razaq, this is not the appropriate stage for the purpose of examining the reasons assigned by the Assistant Commissioner. We decline interference and relegate the petitioner to the forum before the Assistant Commissioner. The impugned notice shall be taken to its logical conclusion in accordance with law. If any adverse finding is rendered against the petitioner, obviously the same must have the support of reasons. Thereafter, the petitioner shall be at liberty to explore his remedy in accordance with law.

Summary

Issues: Challenge to notice under Section 148 of the Income Tax Act, 1961

Analysis:
1. The petitioner challenged a notice issued under Section 148 of the Income Tax Act, 1961, on the grounds of absence of jurisdictional fact.
2. After receiving the notice, the petitioner requested reasons for the reopening of assessment proceedings for the Assessment Year 2016-2017.
3. The Assistant Commissioner of Income Tax provided reasons citing low capital gain reported, high expenses claimed, and non-registration of the sale deed leading to the alleged escapement of income.
4. The petitioner objected to the notice, raising several grounds before the Assistant Commissioner of Income Tax.
5. The petitioner then filed a writ petition before the High Court, resulting in an interim order preventing further action by the respondents.
6. The High Court noted the petitioner's attempt to challenge the notice through the writ petition while simultaneously lodging objections before the Assistant Commissioner, deeming it impermissible in law.
7. The petitioner's contention of an error of jurisdictional fact was found prima facie untenable by the Court.
8. Reference was made to Supreme Court decisions emphasizing the necessity for the notice recipient to raise objections before the Assessing Officer and the limitations of the High Court in examining the reasons for reopening assessments.
9. The Court declined interference and directed the petitioner to address concerns before the Assistant Commissioner, allowing for further legal recourse if adverse findings are made.
10. The writ petition was disposed of without costs, with the interim order vacated.
11. All contentions regarding the notice and proceedings were left open, with the Court clarifying that its observations were specific to the decision on the writ petition.