2023 (3) TMI 221 - HC - Income Tax

Validity of reopening of assessment - order passed u/s 148A(d) as it stood amended - interpreting the provision of the Act before its amendment - HELD THAT - The legal principle which had been laid down by several decisions of the Hon ble Supreme Court while interpreting the provision of the Act before its amendment would equally apply with full force while considering the correctness of an order passed u/s 148A(d) of the Act. That apart, the assessee has no other alternative remedy as against the order impugned in the writ petition and we are also of the prima facie view that it would not be right to hold that all issues can be adjudicated at the time of the reassessment proceedings. We say so because when a jurisdictional issue is raised before the writ Court, even assuming an alternative remedy is available, it will not operate as an absolute bar for entertaining the writ petition as jurisdictional issue goes to the root of the matter and it is one of the exceptional factors carved out by the Hon ble Supreme Court for exercise of jurisdiction under Article 226 of the Constitution of India. Therefore, we are of the view that the learned Single Bench ought to have considered the correctness of the order impugned before it qua the grounds which were canvassed by the assessee/appellant in his reply to the notice issued under Section 148A(b) of the Act. Assumption of jurisdiction by referring to Section 149(1) - In the reply dated 14th June, 2022 the first ground which has been raised by the assessee is by contending that the re-assessment has to necessarily fall within Clause (b) to sub- Section (1) of Section 149 of the Act. Referring to the decision of the Hon ble Supreme Court in the case of Union of India vs. Ashish Agarwal 2022 (5) TMI 240 - SUPREME COURT it is contended that the new law relating to re-assessment shall operate and that all defence under Section 149 of the new law shall be available to the assessee. The assessing officer while passing the order passed by the writ petition has given an interpretation and held against the assessee. Therefore, necessity arises for the writ Court to consider the correctness of such finding, which finding cannot be agitated before the assessing officer in the re-assessment proceedings. Thus, we are of the view that the appellant has made out a case for entertaining this appeal. Accordingly, the appeal stands admitted. If the reassessment proceeding is allowed to proceed further during the pendency of the appeal, this appeal will become infructuous. Therefore, there will be an order of interim stay of the order passed under Section 148A(d) of the Act dated 28th July, 2022 as well as the consequential notice issued under Section 148 of the Act dated 28th July, 2022 until further orders. The respondent/department is directed to file their affidavit-in-opposition not only to the grounds in this appeal but also the averments raised in the writ petition.

Summary

Issues involved:
Challenge to order under Section 148A(d) of the Income Tax Act, 1961 - Jurisdictional issue - Interpretation of Section 149(1) of the Act.

Analysis:
The High Court of Calcutta heard an intra-court appeal challenging an order under Section 148A(d) of the Income Tax Act, 1961, for the assessment year 2015-16. The appellant had contested the order, arguing that it was not an assessment or a demand but rather a step preceding the assessment process. The Court noted that the legal principles established by the Supreme Court prior to the amendment of the Act would apply in assessing the validity of an order under Section 148A(d). The Court highlighted that the appellant had no other immediate remedy against the order in question and emphasized that jurisdictional issues could be addressed in a writ petition, even if alternative remedies existed. The Court opined that it was essential to consider the correctness of the impugned order regarding the grounds raised by the appellant in response to the notice issued under Section 148A(b) of the Act.

The appellant raised concerns about the assumption of jurisdiction under Section 149(1) of the Act. Citing a Supreme Court decision, the appellant argued that reassessment must align with the provisions of Section 149(1)(b) and that defenses under the new law should be available. The assessing officer had ruled against the appellant's contentions, prompting the need for the Court to review the correctness of this ruling, which could not be challenged during the reassessment proceedings. Consequently, the Court found merit in the appellant's case for pursuing the appeal and admitted it for further consideration.

To prevent the appeal from becoming moot, the Court ordered an interim stay on the order under Section 148A(d) of the Act and the consequential notice until further directives. The respondent department was instructed to submit an affidavit addressing the grounds of the appeal and the assertions made in the writ petition within a specified timeline. The Court scheduled the appeal for a hearing on a future date to deliberate on the matter comprehensively.