2022 (8) TMI 911 - HC - Income Tax

Reopening of assessment u/s 147 - Mandation of minimum of 7 days notice must be given - HELD THAT - Sub-Section (b) of Section 148 makes it clear that while serving a notice on the assessee to show cause, even such time may be specified in the notice being not less than 7 days and not exceeding 30 days from the date on which the said notice is issued. Therefore, sub- Section(b) of Section 148 contemplates that, a minimum of 7 days notice must be given. Herein a case in hand, notice dated 17.03.2022 was issued giving time upto 21.03.2022 therefore, the minimum 7 days since has not been given in this case, on that ground also consequential proceedings, which is impugned herein is vitiated and it can be interfered with. Thus impugned order is hereby set aside. As a sequel, the impugned order is also set aside and the matter is remitted back to the respondent. While redoing the exercise, it is open to the respondent to issue a notice afresh u/s 148B giving not less than 7 days to the petitioner/assessee to respond and on receipt of the same, the petitioner shall respond by giving their reply or inputs within the time stipulated therein.

Issues:
1. Notice under Section 148A of the Income Tax Act, 1961 issued to assessee for Assessment Year 2015-2016.
2. Challenge to the order passed under Section 148A of the Act in W.P.No.10045 of 2022.
3. Challenge to the notice issued under Section 148 in W.P.No.10049 of 2022.
4. Violation of principles of natural justice in the impugned order.
5. Consideration of communication sent by assessee through registered post.
6. Minimum notice period required under Section 148 not complied with.

Analysis:
1. The judgment dealt with writ petitions challenging the issuance of a notice under Section 148A of the Income Tax Act, 1961 for the Assessment Year 2015-2016. The issue was whether the notice was served correctly and whether the principles of natural justice were violated.

2. The first writ petition (W.P.No.10045 of 2022) challenged the order passed under Section 148A of the Act. The petitioner argued that the notice was not received through E-governance but via registered post. The petitioner requested additional time to respond, which was acknowledged by the Assessing Officer. However, the impugned order stated that no reply was filed, leading to a violation of natural justice.

3. The second writ petition (W.P.No.10049 of 2022) challenged the notice issued under Section 148. The respondent contended that replies should only be made through E-governance for consideration by the Assessing Authority. The court noted the discrepancy between the petitioner's request sent via registered post and the Assessing Authority's decision to ignore it due to not being sent through E-portal.

4. The court found that ignoring communications sent by registered post with acknowledgment due, solely because they were not sent through E-governance, would violate the principles of natural justice. The court emphasized the importance of due consideration for communications from the assessee, regardless of the mode of transmission.

5. Additionally, the judgment highlighted the requirement under Section 148 for a minimum notice period of 7 days when serving a notice on the assessee. Since the notice in question did not comply with this minimum period, the court held that the consequential proceedings were vitiated and could be interfered with.

6. Consequently, the court set aside both the impugned order in W.P.No.10045 of 2022 and the notice in W.P.No.10049 of 2022. The matters were remitted back to the respondent, with directions to issue a fresh notice under Section 148B, giving the petitioner sufficient time to respond. The court emphasized the importance of replying through E-governance in the future, given its prevalence in practice.

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