2023 (7) TMI 1485 - HC - Income Tax

Validity of Reopening of assessment - order passed u/s 148A(d) - petitioner s objection/response to the notice u/s 148A(b) was not properly considered - HELD THAT - There is a difference between non-consideration at all and improper consideration of a response. It is not a case where objection of the petitioner has not been considered at all though AO has come to a different conclusion. Ground of challenge of the aforesaid impugned order as appears from the argument and submission of petitioner that it revolves around the merit of the impugned order which is based on facts and material evidence and this Writ Court cannot act as an assessing officer or as an appellate authority to scrutinize or re-appreciate those evidence on the basis of which the assessing officer has come to such conclusion. Any findings and conclusion in an order u/s 148A(d) is not a final findings and conclusion and the same will be again subject to final outcome of the order u/s 147 which has not yet been passed and assessing officer while taking the final view and before conclusion in passing the order u/s 147 will have to follow all the procedures like a regular assessment proceeding by issuing notice u/s 142(1), 143(2) of the Act and service of draft assessment order to the petitioner. Thus, not inclined to interfere with the aforesaid impugned order u/s 148A(d) - Petitioner will be at liberty to take all the points raised in this writ petition in course of the proceedings subsequent to the order u/s 148A(d). Ground of the petitioner challenging the notice under Section 148 that after the order u/s 148A(d) which was issued by the jurisdictional assessing officer in case the same should be issued faceless - This is a hyper-technical ground since mode and manner of service of a notice does not affect contents, substance and merit of a notice unless petitioner makes out a case that notice was not served at all or he has not received the notice. It is not a case that no notice has been issued at all and in all proceedings subsequent to the impugned order u/s 148A(d) of the Act department will have to follow the procedure laid down for faceless assessment.

Summary

The High Court of Calcutta, in WPO 1193 of 2023, dismissed a writ petition challenging an order under Section 148A(d) of the Income Tax Act, 1961 for assessment year 2019-20. The court held that the petitioner's objection was properly considered, and the court cannot act as an assessing officer or appellate authority to reevaluate evidence. The order under Section 148A(d) is not final, and the assessing officer must follow proper procedures for final assessment under Section 147. The mode of service of notice does not affect its substance.