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2023 (6) TMI 739 - HC - Income TaxValidity of reopening of assessment - Period of limitation - notice under the new regime - HELD THAT - We are in agreement with respondent that the notice dated 23.05.2022 issued un/s 148A(b) cannot be declared as being untenable in law, since even according to Petitioner the limitation qua AY 2019-20 would have expired only on 31.03.2023. Merely because there is a reference to the judgment of Ashish Aggarwal s case 2022 (5) TMI 240 - SUPREME COURT which according to Petitioner would not apply qua the AY in issue, it would not render the notice untenable, as it is the common case of counsel for parties that after 01.04.2021, notices could have been issued only under the new regime. Petitioner cannot but accept that the notice dated 23.05.2022 has been issued under the new regime, i.e., under Section 148A(b) of the Act. Since proceedings on the very same aspects have been dropped in other AYs, that aspect required attention of the AO - Since according to Petitioner assessment order has not been passed, it would be best, if the AO were to advert to the record concerning the earlier AYs before passing the assessment order. It is ordered accordingly. Rule of res-judicata does not apply, i.e., that each AY is different. That said, if the reasons for reopening are consistently similar or the same, the AO needs to apply the principle of consistency, before passing the assessment order. See Radhasaomi Satsang 1991 (11) TMI 2 - SUPREME COURT AO will, thus, accord personal hearing to the authorized representative of the petitioner before he proceeds further.
Issues involved:
The judgment concerns a writ petition against an order passed under Section 148A(d) of the Income Tax Act, 1961 for Assessment Year (AY) 2019-20. The challenge is also laid to the consequential notices issued under Section 148 of the Act. The petitioner has additionally assailed a notice issued under Section 148 of the Act and an intimation letter issued under Section 148A(b) of the Act. Issue 1: Validity of Notice under Section 148A(b) of the Act The petitioner contended that the notice dated 23.05.2022 issued under Section 148A(b) of the Act is unsustainable in law due to the reference to a Supreme Court decision. It was argued that the limitation for AY 2019-20 had not expired at the relevant time, making the notice invalid. However, the court, in agreement with the respondent's counsel, held that the notice cannot be declared untenable as the limitation for AY 2019-20 would have expired only on 31.03.2023, despite the reference to the Supreme Court judgment. Issue 2: Reassessment Triggered by Previous Survey The genesis of the reassessment against the petitioner was a survey conducted on 22.12.2020. The petitioner argued that the reasons for initiating proceedings for AYs 2013-14 to 2017-18 were similar to those for AY 2019-20. It was contended that the AO had not considered the aspects raised by the petitioner in his communication dated 13.06.2022 while passing the order under Section 148A(d) of the Act. The court acknowledged the petitioner's argument that since proceedings on similar aspects had been dropped in other AYs, the AO should consider the record of earlier AYs before passing the assessment order. Directions and Conclusion The court ordered that the AO should accord a personal hearing to the authorized representative of the petitioner before proceeding further. The AO was directed to issue a notice indicating the date and time of the hearing and to pass a speaking assessment order addressing the assertion that assessments for AYs 2018-19 and 2020-21 involved aspects similar to those of AY 2019-20. The judgment disposed of the writ petition accordingly, emphasizing the need for the AO to apply the principle of consistency in cases where reasons for reopening assessments are consistently similar or the same.
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