2023 (1) TMI 46 - HC - Income Tax

Reopening of assessment u/s 147 - proceeding u/s 148A - violation of not only the statutory provisions, but has also basic principles of natural justice - as argued AO has virtually not considered the reply of the petitioner received in response to the show cause notice u/s 148A(b), also AO has not passed a speaking order under Section 148A(d) and has not dealt with each and every objection - HELD THAT - As guidelines only explain what is required of an Assessing Officer while complying with the provisions of Section 148A along-with its sub clauses i.e. Clauses a to d. The guidelines otherwise also clearly state that these are only indicative and not exhaustive and the Assessing Officer may take suitable decision on a case to case basis qua the situations not specified in these guidelines. Accordingly, in view of the aforesaid discussion and reasons stated, the present petition is allowed and the impugned order issued under Clause 8 of the Income Tax Act, 1961 (Annexure P-5) is quashed. The respondents are directed to furnish additional material in support of the allegations made in the notice dated 19.03.2022 (Annexure P-3) within four weeks, including the reports, if any. Thereafter, the Assessing Officer shall decide the matter in accordance with law.

Summary

Issues Involved:

1. Validity of the notice issued under Section 148A of the Income Tax Act.
2. Proper application of mind by the Assessing Officer.
3. Compliance with the principles of natural justice.
4. Adequacy of the information provided in the show cause notice.
5. Consideration of the petitioner's reply by the Assessing Officer.
6. Adherence to the statutory provisions and guidelines.

Detailed Analysis:

1. Validity of the Notice Issued Under Section 148A:
The petitioner, a partnership concern, was served a notice under Clause (b) of Section 148A of the Income Tax Act on 19.03.2022, indicating that income amounting to Rs. 26,99,62,000/- had escaped assessment. The grounds for reopening the case included alleged undeclared mutual fund sales, interest in assets, and foreign remittances.

2. Proper Application of Mind by the Assessing Officer:
Section 148A was incorporated to ensure a detailed, reasoned, and speaking order under Section 148A(d) of the Act. The Assessing Officer is expected to rebut each objection and submission with proper reasons. The guidelines issued by the Central Board of Direct Taxes (CBDT) on 01.08.2022, although post-dating the assessment, highlight the necessity for a thorough application of mind.

3. Compliance with the Principles of Natural Justice:
The petitioner filed a reply on 26.03.2022, denying the transactions alleged in the notice. The Assessing Officer rejected the reply without providing specific details or documents that formed the basis of the allegations. This lack of detailed information and failure to address each objection in the petitioner's reply constituted a violation of natural justice principles.

4. Adequacy of the Information Provided in the Show Cause Notice:
The show cause notice lacked specific details regarding the alleged transactions. The petitioner requested details such as dates, names of mutual funds, and bank account information to provide a substantive response. The respondents later specified the names of individuals related to the transactions, which should have been included in the initial notice to allow the petitioner to respond adequately.

5. Consideration of the Petitioner's Reply by the Assessing Officer:
The Assessing Officer did not consider the petitioner's reply in a substantive manner. The order under Clause (d) of Section 148A merely reiterated the contents of the initial notice and the petitioner's reply without addressing the objections raised. The failure to pass a speaking order and address each objection violated statutory provisions and natural justice principles.

6. Adherence to the Statutory Provisions and Guidelines:
The guidelines issued by the CBDT on 01.08.2022, although not applicable at the time of the notice, emphasize the procedural requirements for issuing notices under Section 148A. These guidelines outline the necessity for detailed information, proper enquiry, and a reasoned order, which were not followed in this case.

Conclusion:
The petition is allowed, and the impugned order under Clause 8 of the Income Tax Act, 1961 is quashed. The respondents are directed to provide additional material supporting the allegations within four weeks, after which the Assessing Officer shall decide the matter in accordance with the law. The writ petition and pending applications are disposed of accordingly.