2023 (8) TMI 91 - HC - Income Tax

Reopening of assessment - petitioner received notice under Section 148 - as argued order u/s148A(d) not having been passed - As submitted circular relied upon by petitioner itself provided that within 15 days of the communication being issued manually, it has to be uploaded in the system thereby compulsorily generating the DIN on the system and the same has to be communicated to the assessee as per electronically generated proforma available on the system - HELD THAT - As all factual situations which we are not inclined to go into in our jurisdiction under Article 226 of the Constitution of India. At the same time, we should also note that in the affidavit filed by the said Neha Desai, it is stated that in none of the replies sent in response to the notice under Section 148, petitioner had even raised this ground of order u/s 148A(d) not having been passed. It is also recorded that petitioner had responded to three notices under Section 142(1) issued on 12th January 2023, 23rd February 2023 and 16th March 2023. Before that petitioner had also responded in detail to the original notice also. But never was this ground raised. We should also note that a personal hearing was also granted vide impugned communication dated 12th May 2023. In response to the notice dated 4th May 2023, petitioner has submitted its reply on 11th May 2023 thereby seeking extension, which was granted upto 14th May 2023. The assessing officer has proceeded to pass the order dated 19th May 2023 since time to complete the assessment was expiring on 31st May 2023. In the assessment order dated 19th May 2023, petitioner s detailed submissions have been recorded and the assessing officer has point by point rebutted petitioner s contention. We would say it is one of the well detailed order though, we would not certify the contents as correct. We have not gone into those details or merits. That, we leave for petitioner to challenge in the appeal that it may want to file against the assessment order dated 19th May 2023. We would reject this petition with a direction to petitioner to adopt the alternate remedy available by way of filing an appeal. Petitioner may file the appeal within four weeks from today.

Summary

Issues involved: Impugning a notice under Section 148 of the Income Tax Act 1961, validity of assessment order dated 19th May 2023, compliance with Section 148A(d) of the Act, and availability of alternate remedy by way of filing an appeal.

Impugned Notice under Section 148:
The petitioner, a company registered under the Companies Act 1956, challenged a notice dated 31st July 2022 issued under Section 148 of the Income Tax Act 1961. The notice called upon the petitioner to file a reply to the show cause notice dated 5th May 2023 by 14th May 2023. Subsequently, an assessment order dated 19th May 2023 was passed, which was included in the petition after obtaining leave from the court.

Compliance with Section 148A(d) of the Act:
The petitioner contended that the objections filed had not been disposed of, and the mandatory order under Section 148A(d) of the Act had not been passed before serving the notice dated 31st July 2022. The petitioner argued that the assessment order passed on 19th May 2023 was illegal due to the absence of the required order under Section 148A(d).

Availability of Alternate Remedy - Filing an Appeal:
The High Court rejected the petition, directing the petitioner to pursue the alternate remedy of filing an appeal. The court instructed the petitioner to file the appeal within four weeks, ensuring it is not treated as a delayed appeal. The petitioner was advised to raise all contentions before the Appellate Authority and could also file a stay application, to be disposed of within four weeks from filing. No coercive steps were to be taken until the stay application was decided and for two weeks thereafter.

Conclusion:
The petition was dismissed, clarifying that no observations were made on the merits of the matter. The court emphasized the availability of the appellate process for the petitioner to challenge the assessment order dated 19th May 2023, providing specific directions for the filing of an appeal and potential stay application.