2023 (8) TMI 228 - HC - Income Tax

Validity of reopening of assessment u/s 147 - opportunity of being heard by assessee by issuing the show cause notice u/s 148A(b) need to be given - HELD THAT - As the result of an enquiry/ information available suggests that income chargeable to tax has escaped assessment, AO shall provide an opportunity of being heard by assessee by issuing the show cause notice u/s 148A(b) and the notice shall provide between seven to thirty days time for the assessee to submit their reply. A template of the show cause notice is also annexed to the guidelines. Therefore, in view of the guidelines, we would also read that the minimum seven days required to be made as a mandatory requirement and failure to comply with would render a notice itself invalid. Therefore, on this ground alone, the notice requires to be quashed and set aside. Perhaps, being aware of this position, Respondent No. 1 has chosen not to deal with these objections raised by Petitioner in the reply to the show cause notice. Also a provision that the order u/s 148A(d) shall be sent to assessee along with the approval of the specified authority for such order u/s 148A(d) - In the case at hand, the approval that has been sent is of some other assessee and not Petitioner. This also indicates non-application of mind by Respondent No. 1. On this ground also, the order dated 31st March 2023 impugned in the Petition is required to be quashed and set aside. Assessing Officer will specify the quantum of income/assets/ expenditure/ entry which has escaped assessment. This not stated in the order under Clause D of Section 148 of the Act. On this ground also, the said order dated 31st March 2023 is required to be quashed and set aside. There is a factually incorrect statement made in the order that the affidavit of Petitioner s brother that was submitted was not notarized when it was factually a notarized affidavit. In the impugned order, it is stated that the HDFC statement/document do not substantiate the credit worthiness and genuineness of the lender of the gift, i.e., brother of Petitioner. Mr. Gandhi states that if only Petitioner was called upon to submit, Petitioner would have submitted evidence towards credit worthiness of the brother because in the show cause notice issued, Petitioner was only directed to call upon to disclose the source from which he got money to pay for the flat. In our view, therefore, on this ground also, the impugned order dated 31st March 2023 is required to be quashed and set aside. Decided in favour of assessee.

Summary

Issues involved:
The issues involved in the judgment are the validity of the notice issued under Section 148A(b) of the Income Tax Act, 1961, the order passed under Section 148-A(d) of the Act, and the subsequent notice issued under Section 148 of the Act.

Validity of Notice under Section 148A(b):
The petitioner, an individual, received a notice under Section 148A(b) stating that income chargeable to tax for Assessment Year 2016-17 had escaped assessment. The notice required the petitioner to show cause within a specified time frame, but the petitioner argued that the notice was invalid as it provided only five days for a response, contrary to the minimum requirement of seven days as per the Act. The petitioner also submitted an affidavit from his brother confirming a gift beyond the relevant assessment year. The court found that the notice's failure to comply with the mandatory seven-day requirement rendered it invalid, and the objections raised by the petitioner were not addressed by the respondent.

Validity of Order under Section 148-A(d):
The respondent passed an order under Section 148A(d) stating that income had escaped assessment, citing a credit entry in the brother's bank statement. However, the approval attached to the order belonged to a different assessee, indicating a lack of application of mind by the respondent. Additionally, the order did not specify the amount of income/assets that had escaped assessment, as required by guidelines. The court held that these deficiencies warranted quashing and setting aside of the impugned order.

Incorrect Statements and Lack of Substantiation:
Several factual inaccuracies were found in the order, including a statement that the brother's affidavit was not notarized, which was incorrect. Moreover, the order questioned the creditworthiness of the brother without giving the petitioner an opportunity to provide evidence in this regard. The court concluded that the order should be quashed and set aside on these grounds as well.

Decision:
The High Court quashed and set aside the notice issued under Section 148A(b), the order passed under Section 148A(d), and the subsequent notice issued under Section 148 of the Income Tax Act. The petition was disposed of with no order as to costs.