2019 (3) TMI 1127 - HC - Income Tax

Reopening of assessment u/s 147 - non furnishing of reasons to believe - denial of natural justice - Allegation that Request for reasons was not made within 30 days - non disposal of objections - seeking extension of time for production of requisite documents ignored - alternative remedies - writ jurisdiction by the High Court - HELD THAT - Admittedly reasons for re-opening of assessments have not be furnished to the petitioner. Object of furnishing reasons was to enable the petitioner to file objections regarding re-opening and then on filing of objections, the petitioner had the right of hearing before the A.O. Then, A.O. after considering the objections and after hearing the petitioner was to deal with the objections by passing a speaking order, same has not been done. In addition thereto, the petitioner while responding to the Notices under Sections 143(2) and 142(1) of the Act had requested for extending time for production of requisite documents up to 04.03.2019 for the reasons as detailed therein same too has been ignored. While ignoring, to follow statutory requirements, filing objections and hearing, impugned assessment and demand orders have been passed which in turn would suggest that the respondent has not only breached the principles of natural justice but also breached the procedure which was required to be followed for decision (reassessment). There has been a breach of principles of natural justice and also the procedure, required to be adopted for passing assessment orders on reassessment and demand orders, have not been followed. Therefore, an exceptional case for invoking power under Article 226 of the Constitution of India. Both the orders being unsustainable, to ask the petitioner to avail remedies of appeal, matter will unnecessarily get protracted. While holding petitions maintainable, we allow the same and set aside all the impugned assessment and demand orders. A.O. shall furnish reasons for re-opening of assessment of income for the said assessment years so as to enable the petitioner to file objections and after hearing the petitioner, to pass speaking orders then to proceed with the assessment and to pass appropriate orders as shall be warranted. - Decided in favour of assessee

Summary

Issues Involved:
1. Maintainability of writ petitions under Article 226 of the Constitution of India.
2. Compliance with principles of natural justice and statutory procedures in reassessment proceedings.
3. Requirement for the Assessing Officer to furnish reasons for reopening assessments under Section 147 of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Maintainability of Writ Petitions:
The respondents argued that the writ petitions are not maintainable because the petitioner has efficacious remedies available under the Income Tax Act, 1961, such as appeals under Section 246 before the Deputy Commissioner (Appeals), the Appellate Tribunal, and further appeals before the High Court under Section 260A. However, the petitioner contended that despite the availability of these remedies, the extraordinary jurisdiction of the High Court under Article 226 can be invoked when principles of natural justice and reassessment procedures have not been followed. The court noted that the non-entertainment of petitions under writ jurisdiction when an efficacious alternative remedy is available is a rule of self-imposed limitation, and it is within the discretion of the High Court to grant relief under Article 226 in exceptional cases where there has been a breach of principles of natural justice or procedural requirements.

2. Compliance with Principles of Natural Justice and Statutory Procedures:
The petitioner argued that the Assessing Officer (A.O.) did not follow the principles of natural justice and statutory procedures for reassessment. Specifically, the petitioner highlighted that when a notice under Section 148 is issued, reasons must be furnished to enable the assessee to file objections, which must be considered and disposed of by the A.O. by passing a speaking order before the assessment order is passed. The petitioner cited the Supreme Court judgment in "GKN Driveshafts (India) Ltd. v. Income-tax Officer" to support this contention. The court found that the A.O. issued notices under Section 148 on 10.01.2019, received by the petitioner on 16.01.2019, with a 30-day response period expiring on 15.02.2019. The petitioner responded on 13.02.2019, requesting the original returns to be considered and asking for reasons for reopening the assessments. The A.O. issued show cause notices on 12.02.2019 and 13.02.2019 regarding failure to comply with Section 148 notices and the completion of assessments under Section 144. Despite the petitioner's request for time to collect requisite information, the A.O. passed the assessment and demand orders on 20.02.2019 without furnishing reasons for reopening the assessments or allowing time for document production, thus violating principles of natural justice.

3. Requirement for Assessing Officer to Furnish Reasons for Reopening Assessments:
The court emphasized that the A.O. must furnish reasons for reopening assessments under Section 147 to enable the petitioner to file objections and have a right to a hearing before the A.O. The petitioner had specifically requested reasons for reopening while responding to the notices under Section 148 on 13.02.2019. The court noted that the A.O. did not furnish these reasons, which was a breach of statutory requirements and principles of natural justice. The court cited the Supreme Court judgment in "GKN Driveshafts (India) Ltd. v. Income-tax Officer," which mandates that reasons for issuing notices under Section 148 must be furnished, and objections must be disposed of by passing a speaking order before proceeding with the assessment. The court also referred to the Bombay High Court judgment in "Commissioner of Income-tax – 24 v. Trend Electronics," which reiterated the necessity of furnishing reasons for reopening assessments as a jurisdictional issue that must be strictly complied with.

Conclusion:
The court held that there had been a breach of principles of natural justice and statutory procedures required for passing reassessment and demand orders. The petitions were deemed maintainable, and the impugned assessment and demand orders dated 20.02.2019 were set aside. The A.O. was directed to furnish reasons for reopening the assessments, allow the petitioner to file objections, and pass speaking orders after hearing the petitioner before proceeding with the assessments and passing appropriate orders. The petitions were allowed and disposed of, with no order as to costs.