2023 (5) TMI 916 - HC - Income Tax

Reopening of assessment u/s 147 - Validity of order u/s 148A - Scope of new provision section 148A - interpreting the provision of the Act before its amendment - non- attending objection raised against reopening - old notice was treated under the new provisions to be the notice u/s 148A(b) - HELD THAT - The position which unfolds in this case is that the petitioner assessee had filed its objections to the notice for reassessment u/s 148 unamended issued to him, however, the AO never attended to the objections dated 12.10.2022 and left it undecided. Old notice dated 30.6.2021 was treated under the new provisions to be the notice under section 148A(b) at this stage the petitioner was deprived of opportunity to put forth his case against the proposed reopening of the assessment. According to the petitioner assessee, the notice was never subsequently served on him and he did not receive it and only knew about passing of the order u/s 148A(d) from the portal. When the petitioner is deprived of opportunity of defending his case and consideration of his reply to the notice for reopening, the request that the objections which was filed in response to the notice under unamended provisions may be considered by the Assessing Officer to be the reply to notice under section 148A(b) of the Act, is reasonable. It would sub-serve the purpose of compliance of natural justice and giving a fair treatment to assessee to put forth its case and avail the reasonable opportunity of being heard which the statute expressly contemplates for the assessee. It is in tune with provisions of section 148 of the Act. When the reassessment notice issued under the unamended provision is directed to be treated and deemed to have been as notice under section 148A(b) of the Act, the scope of words in sub-clause (c), consider the reply of the assessee furnished, if any, in response to the show-cause notice referred to in clause (b) could be construed and applied accordingly. The show cause notice referred to in clause (b) could be equated with show cause notice issued under the unamended section 148 of the Act. Similarly, reply of the assessee furnished could be equated with the reply-cum-objections to the reasons supplied alongwith the notice under the old regime. Petitioner submitted its reply-cumobjections and they remained undecided. In the circumstances, it would be therefore trite that the Assessing Officer while exercising his powers under and within the ambit available to him as per section 148A of the Act, considers the reply-cum-objections of the petitioner treating it to be the reply in response to notice under section 148A(b) of the Act. This would rule out the possibility of occurrence of prejudice to the assessee. Order - The proceedings of the case are remanded to the competent Assessing Officer. The competent Assessing Officer shall decide afresh the notice under section 148A(b) after considering the reply-cum-objections submitted by the petitioner to previous notice issued under Section 148 under the old regime provisions relating to reassessment, whereby the assessment of the petitioner for the Assessment Year 2016-17 was sought to be reopened. The reply-cum-objections of the petitioner shall be treated by the Assessing Officer as response to the notice issued under Section 148A (b).

Issues Involved:
1. Validity of the notice and order issued under Sections 148 and 148A of the Income Tax Act, 1961.
2. Allegation of undisclosed income and shell company status.
3. Compliance with principles of natural justice.
4. Application of the Supreme Court's decision in Union of India vs. Ashish Agrawal.

Summary:

1. Validity of the Notice and Order under Sections 148 and 148A:
The petitioner sought to set aside the order dated 30.07.2022 under Section 148A(d) and the consequential notice under Section 148 of the Income Tax Act, 1961, for the Assessment Year 2016-17. The petitioner argued that the reassessment proceedings were initiated based on incorrect facts and without proper notice under Section 148A(b).

2. Allegation of Undisclosed Income and Shell Company Status:
The Assessing Officer alleged that the petitioner, a builder and developer, purchased immovable property worth Rs. 30,23,10,000/- from undisclosed income and was a shell company not involved in any real business activity. The petitioner refuted these allegations, stating that the property was purchased for Rs. 10,59,23,190/- and recorded in the audited books.

3. Compliance with Principles of Natural Justice:
The petitioner contended that the Assessing Officer did not dispose of the objections filed against the reasons for reassessment, violating the principles of natural justice. The petitioner did not receive the notice under Section 148A(b) and only discovered the order under Section 148A(d) from the portal.

4. Application of the Supreme Court's Decision in Union of India vs. Ashish Agrawal:
The Supreme Court in Ashish Agrawal's case directed that notices issued under the old Section 148 should be treated as notices under Section 148A(b). The petitioner argued that their objections to the old notice should be considered as a reply to the new notice under Section 148A(b).

Judgment:
The High Court remanded the case to the competent Assessing Officer with the following directions:
1. The Assessing Officer shall decide afresh the notice under Section 148A(b) dated 23.05.2022 after considering the petitioner's objections dated 11.10.2021.
2. The objections dated 11.10.2021 shall be treated as a response to the notice dated 23.05.2022.
3. The Assessing Officer shall complete this exercise within eight weeks from the receipt of this order.
4. The order dated 30.07.2022 under Section 148A(d) and the consequential notice under Section 148 are set aside.
5. The Court clarified that it has not expressed any opinion on the merits of the case.

The petition was allowed in terms of the above order and directions.

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