2024 (2) TMI 753 - HC - Income Tax

Validity of reopening of assessment - grievance raised that the objections raised were not specifically dealt - procedure prescribed u/s 148A followed or not? - whether A.O. while passing the impugned order has considered the material on record, the replies filed and passed a speaking order? HELD THAT - From the language of Section 148A and the guidelines, it is clear that before initiating the proceedings u/s 148 with prior approval of the specified authority, the A.O. if so, required may conduct an enquiry with regard to the information suggesting escaped assessment. The assessee is to be provided an opportunity of hearing by issuing notice specifying the date of not less than 7 days but not exceeding 30 days, which may be extended on application. The information relied upon for reassessment and outcome of enquiry if conducted any, is to be supplied. In case of information having been received from investigating wing or other agency, brief summary of information along with relevant portion of report and details of documents relied upon is to be supplied. The decision as to if it is a fit case for issuance of notice u/s 148 is to be taken with prior approval of the specified authority, on the basis of material available on record and considering the reply filed by the assessee. The order is to be passed within one month from ending of the month when reply was filed and in case no reply was filed within one month from end of month when time to file reply expires. The proviso to Section 148A of the Act provides exception to the applicability of Section 148A of the Act. Addition on cash loan and the interest received - In the survey conducted documents were seized indicating that petitioner had advanced cash loan and interest was received by petitioner. The statement of Shri Ram Gopal Sukhal was also to this effect. On issuance of notice, the petitioner filed replies demanding copy of the material relied upon and raising objections. In the impugned order the reply was reproduced and it was concluded that the petitioner had not made argument on merits of the case hence, had nothing to explain about the cash loan and the interest received. It is mandatory for A.O. to pass speaking order, taking into consideration not only the material on record but also the reply filed. The additional reply was not considered, consequently there was no occasion to deal with the objections raised therein. The impugned order is not as per the procedure prescribed under Section 148A of the Act and cannot stand judicial scrutiny. The impugned order passed u/s 148A(d) is unsustainable, therefore, the other contention raised by the counsel for the petitioner needs no dilation. Scope of alternative remedy - There cannot be quibble with the proposition that if an Act mandates, a particular thing to be done in the manner, it has to be done in that way. The provisions of Section 148A of the Act and the guidelines issued by the CBDT provides for passing a speaking order after considering the reply and the material on record. The impugned order is not in consonance with the procedure prescribed and issue goes to the root of the jurisdiction for initiating the proceedings under Section 148 of the Act. The case falls within the exception to the self-imposed restriction of not entertaining the writ where alternative remedy is available. Reference be made to Whirlpool Corporation Vs. Registrar of Trade Marks 1998 (10) TMI 510 - SUPREME COURT wherein the Supreme Court provided at least three contingencies where the writ petition can be entertained in spite of alternative remedy. (i) Where it is a case of enforcement of fundamental rights, (ii) Where it is the case of violation of principle of natural justice and lastly, (iii) Where the proceedings are without jurisdiction or vires are challenged. The reliance placed by the counsel for the respondent on the decisions of Bhagchand Dinga and Ram Kishore Kadal 2023 (4) TMI 1299 - RAJASTHAN HIGH COURT is of no avail. The writ petitions were filed in those cases after passing of the reassessment order or just a day before when it was passed and the petitioner participated in proceedings. In the present case, the challenge to the initiation of proceedings was subjudice before this Court and during the pendency, the order under Section 147 of the Act was passed. The impugned order is quashed, resultantly, the consequential proceedings.

Issues Involved:
1. Whether the procedure prescribed under Section 148A of the Income Tax Act, 1961 was followed.
2. Whether the reassessment proceedings were time-barred.
3. Whether the petitioner was provided with the adverse material relied upon.
4. Whether the objections raised by the petitioner were adequately addressed.
5. Whether the writ petition is maintainable despite the availability of an alternative remedy.

Summary:

Issue 1: Procedure under Section 148A
The court examined if the Assessing Officer (A.O.) followed the procedure under Section 148A of the Income Tax Act before issuing the notice under Section 148. The A.O. is required to conduct an enquiry, provide an opportunity of being heard, consider the assessee's reply, and decide whether to issue a notice under Section 148. The court found that the A.O. did not properly consider the additional reply dated 14.06.2022 from the petitioner, thus failing to pass a speaking order. Consequently, the impugned order was not in accordance with the prescribed procedure and could not stand judicial scrutiny.

Issue 2: Time-barred Reassessment Proceedings
The petitioner argued that the reassessment proceedings were time-barred as they were initiated beyond three years. The court noted that the information indicated that Rs. 2,80,00,000/- had escaped assessment, and the proceedings were within the permissible time limit.

Issue 3: Provision of Adverse Material
The petitioner contended that the adverse material was not provided along with the notice. The court observed that the information was supplied on 27.06.2022, but the A.O. failed to consider the additional objections raised by the petitioner, leading to a procedural lapse.

Issue 4: Addressing Objections
The petitioner claimed that their objections were not specifically dealt with. The court found that the A.O. did not adequately consider the objections, particularly the additional reply dated 14.06.2022, thereby failing to pass a speaking order as required under Section 148A.

Issue 5: Maintainability of Writ Petition
The respondent argued that the petitioner had an alternative remedy and had already filed an appeal. However, the court held that the impugned order was not in consonance with the procedure prescribed, thus falling within the exceptions where a writ petition can be entertained despite the availability of an alternative remedy. The case involved a violation of the principles of natural justice and jurisdictional issues.

Conclusion:
The court quashed the impugned order dated 26.07.2022 and the consequential proceedings. The matter was remitted back to the respondent to proceed with the notice under Section 148-A(b) in accordance with the law. The writ petition was allowed.

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