2022 (7) TMI 865 - HC - Income Tax

Reopening of assessment u/s 147 - validity of notice ssued u/s 148A - non-disclosure of cash deposited in the bank account - alleged income which is said to have escaped assessment is much below Rs. 50,00,000 - HELD THAT - As while passing an order u/s 148A the authority is required to reach satisfaction to not only that income chargeable to tax has escaped assessment, but in case where three years have elapsed from the end of the relevant assessment year, the order u/s 148 for issuance of notice u/s 148 could be passed if there were no statutory impediment as contained in Section 149 Sub-section (1) (b) of the Act, referred to hereinabove. The authority, as is apparent, sought to bridge this statutory impediment not on the basis of any material available on record but only with the help of a surmise that the assessee may have some more accounts. Even before this Court, when the reply has been filed by the respondent, no material has been placed to show that at the time when the authority passed order under Section 148A of the Act, there was some material on record that the income chargeable to tax which escaped assessment amount to or is likely to amount Rs.50,00,000/- or more for that year. On conjoint reading of the provisions contained in Section 148A and what has been provided u/s 149, it is vividly clear that in order to initiate proceedings u/s 148A, it is not enough that in case where notice is proposed to be issued under Section 148 after three years have elapsed from the end of the relevant assessment year that there should exist material available on record to reach to conclusion that some income chargeable to tax has escaped assessment, but the amount should be more than Rs.50,00,000/-. Only on the basis that the cash deposits chargeable to tax have escaped assessment, without anything more, the authority was not justified in jumping to the conclusion that the assessee may have more bank accounts. If such an interpretation is placed on the provision of Section 148A (d) of the Act with reference to expression material available on record , then in that case, it will open flood gate and even without availability of any material, the authority would be initiating proceedings u/s 148 of the Act, which will completely frustrate the object of incorporation of Section 148A in the Act. It is well settled principle of interpretation that the taxing statute is required to be construed strictly. The interpretation as has been suggested by the learned counsel for the revenue cannot be placed upon the expression material available on record to include possibility of collection of any relevant or tangible material for opening of proceedings under Section 148A of the Act. Present is a case where the respondent has failed to place before the Court any material to suggest that the income exceeding Rs.50,00,000/- chargeable to tax has escaped assessment, which would warrant issuance of order under Section 148A (d) of the Act followed by issuance of notice under Section 148 of the Act. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the order dated 29.03.2022 under Section 148A(d) of the Income Tax Act, 1961.
2. Issuance of notice under Section 148 of the Income Tax Act, 1961.
3. Requirement of material evidence for initiating proceedings under Section 148A.
4. Statutory limitations under Section 149(1)(b) for issuing notice under Section 148 after three years.

Detailed Analysis:

1. Validity of the order dated 29.03.2022 under Section 148A(d) of the Income Tax Act, 1961:
The petitioner challenged the order dated 29.03.2022, which was issued after initiating proceedings under Section 148A(d) of the Income Tax Act, 1961. The authority formed an opinion that income chargeable to tax had escaped assessment and proceeded to issue a notice under Section 148 of the Act. The petitioner contended that the initiation of proceedings was based on incorrect information regarding cash deposits, asserting that the total cash deposits were only Rs.19,39,000/- as opposed to Rs.52,75,000/- claimed by the authority. The court found that the competent authority did not dispute the transactions presented by the petitioner, which indicated that the material available on record did not support the claim of cash deposits exceeding Rs.50,00,000/-. The court concluded that the order dated 29.03.2022 was based on conjecture and not on tangible material evidence, thus rendering it invalid.

2. Issuance of notice under Section 148 of the Income Tax Act, 1961:
The issuance of notice under Section 148 was contested on the grounds that the proceedings were initiated beyond the statutory period of three years. The court emphasized that for proceedings initiated after three years, the income alleged to have escaped assessment must exceed Rs.50,00,000/-. The court noted that the material available on record did not indicate any cash deposits or transactions exceeding Rs.50,00,000/-. The authority's assumption that the petitioner might have additional undisclosed bank accounts was deemed speculative and unsupported by evidence. Consequently, the notice issued under Section 148 was found to be unjustified and was quashed.

3. Requirement of material evidence for initiating proceedings under Section 148A:
The court highlighted the necessity of having tangible material evidence to initiate proceedings under Section 148A. The provision mandates that the decision to issue a notice under Section 148 must be based on material available on record. The court interpreted "material available on record" to mean concrete evidence rather than speculative or conjectural information. The court found that the authority's decision was not based on any substantial material evidence but on mere assumptions, which did not satisfy the legal requirements for initiating proceedings under Section 148A.

4. Statutory limitations under Section 149(1)(b) for issuing notice under Section 148 after three years:
The court referred to Section 149(1)(b) of the Act, which stipulates that if more than three years have elapsed from the end of the relevant assessment year, a notice under Section 148 can only be issued if the income escaping assessment amounts to or is likely to amount to Rs.50,00,000/- or more. The court found that the authority failed to provide any material evidence to show that the income escaping assessment exceeded Rs.50,00,000/-. The reliance on speculative assumptions regarding additional bank accounts was insufficient to meet the statutory requirements. Thus, the proceedings initiated under Section 148A and the subsequent notice under Section 148 were deemed legally unsustainable.

Conclusion:
The court quashed the impugned order dated 29.03.2022 and the notice issued under Section 148 of the Income Tax Act, 1961, due to the lack of substantial material evidence and the failure to meet the statutory requirements under Section 149(1)(b). The petition was allowed, and the proceedings were set aside. No order as to costs was made.