2024 (5) TMI 707 - HC - Income Tax

Review petition - Validity of reopening of assessment - scope of new regime u/s 148A - procedure to be followed by the Revenue for assessment years prior to the amendment of the Act - due to a technical glitch in the portal of the department, whereby the return of income filed by the Petitioner and the request for the reasons for reopening assessment were not seen by the Assessment Officer - Whether the order suffer from an error apparent on the face of the record, the error being that the same are passed contrary to the binding precedent in Ashish Agarwal 2022 (5) TMI 240 - SUPREME COURT and G.K.N. Driveshafts 2002 (11) TMI 7 - SUPREME COURT ? - HELD THAT - As considering the judgment of the Supreme Court in Ashish Agarwal (supra), what has been clearly laid down therein is the procedure to be followed by the Revenue for assessment years prior to the amendment of the Act, if a notice under Section 148 is issued on or after 01.04.2021, the same shall be treated and deemed to be a notice issued in terms of new Section 148A under the amended provision. Ashish Agarwal (supra) does not cover situations where the notice under Section 148 of the unamended Act was sent to the assessee prior to 01.04.2021, i.e. in the present case sent on 31.03.2021 and the Return filed and application seeking reasons for reopening was requested after 01.04.2021. Thus, in our opinion, in the facts of this case, the law laid down in Ashish Agarwal (supra) would not apply and come to the aid of the Petitioner in seeking review of the order. G.K.N. Driveshafts (supra) laid down that, when a notice under Section 148 of the Act is issued, the assessee is required to file a Return, and if he so desires, seeks reasons for issuing the notice. It further holds that, if the assessee takes this course, the AO is bound to furnish reasons within a reasonable time and on receipt of the reasons, the assessee is entitled to file objections, which are required to be heard and disposed of with a speaking order, before proceeding with the assessment. In G.K.N. Driveshafts (supra), the notices under Section 148 were challenged before the High Court which, whilst dismissing the petition, took a view that all objections to that notice could have been taken up before the AO and the petition was premature. Upholding this view, the Supreme Court has only set down a procedure of how the AO should deal with the matter before an assessment order is passed. In our opinion, G.K.N. Driveshafts (supra) does not lay down the proposition that the passing of an assessment order which is, as in this case on the bona fide mistake due to a system glitch of not realising that the Return had been in fact uploaded along with a request for reasons, results in the entire proceeding under Section 148 being rendered illegal and a non-est. In the facts of the present case, G.K.N. Driveshafts (supra) would not apply and a view was taken in this Court s order dated 04.11.2022 based upon the statement in the affidavit in reply. We therefore opine that on the first question, the common order in question is not open to review, as there is no error apparent on the face of the record on the ground of non-consideration of a binding precedent. Whether there is an error apparent on the face of the record of the facts stated in the petitions and affidavit in reply, necessitating a review of the order passed in the petitions? - As we have gone through the entire record, including the Affidavit in reply and a view having been taken by this Court to set aside the impugned common Order and grant the Petitioner with an opportunity to receiving the reasons for reopening of assessment and a hearing before any orders are passed for reassessment, in line with the procedure laid down in G.K.N. Driveshafts (supra) and are of the opinion that there is no ground made out for review of the common order. The submissions made are more in the nature of seeking reappreciation of the entire matter on its merits, which is impermissible in review jurisdiction. No grounds calling for review of common Order 2022 (11) TMI 1478 - BOMBAY HIGH COURT .

Summary

Issues Involved:
Review of a common order passed in multiple writ petitions challenging assessment orders under the Income Tax Act, 1969 for different assessment years.

Comprehensive details of the judgment for each issue involved:

1) The primary grounds for seeking review of the common Order dated 04.11.2022 were based on the contention that the directions remanding the case for fresh assessment orders were contrary to the law laid down by the Supreme Court in previous cases. The Petitioner argued that the absence of furnishing reasons for reopening the assessment order vitiates the jurisdiction of the assessment order as held in previous cases.

2) The Revenue opposed the review petitions stating that there were no grounds for review and that the petitions partake of grounds of an appeal, which is impermissible in review jurisdiction. The Revenue argued that a technical glitch in the department's portal led to the assessment orders being passed without considering the return of income and request for reasons for reopening made by the Petitioner.

3) The background facts revealed that there were discrepancies in the communication between the department and the Petitioner regarding notices and requests for filing returns and reasons for reopening. The Revenue admitted to a genuine mistake due to a technical glitch, leading to the assessment orders being passed without considering the Petitioner's submissions.

4) The two main questions considered for deciding the review petitions were whether the order suffered from an error apparent on the face of the record based on previous judgments and whether there was an error apparent on the face of the record of the facts stated in the petitions and affidavit in reply.

5) The Court analyzed the previous judgments cited by both parties and concluded that the law laid down in those cases did not apply to the facts of the present case. It was determined that there was no error apparent on the face of the record that would warrant a review of the order.

6) After weighing the submissions and reviewing the entire record, the Court found that there was no ground made out for a review of the common order. The submissions made were deemed as seeking reappreciation of the entire matter on its merits, which is impermissible in review jurisdiction.

7) Ultimately, the Court dismissed the Review Petitions as there were no grounds calling for a review of the common Order dated 04.11.2022 based on the analysis of the legal precedents and the facts of the case.