2023 (12) TMI 1046 - HC - Income Tax

Reopening of assessment u/s 147 - period of limitation - Unexplained deposits - HELD THAT - An order u/s 148A (d) of the Act of 1961 had been passed and a notice under Section 148 of the Act of 1961 was issued as against the appellant. The impugned order dated July 28, 2022 had been passed u/s 148A (d) of the Act of 1961 and relates to the Assessment Year 2015-2016. The issue of limitation has been dealt with in the impugned order. It has been held that the case of the appellant would fall under definition of asset as laid down under the provision of Clause b of Section 149 (1) of the Act of 1961. The impugned order has found that, for the relevant financial year a sum had been deposited with ICICI bank by the appellant in his account and that the appellant had failed to produce any supporting documentary evidence to explain such deposit. Such deposit has not been reflected in the relevant assessment year. Therefore, by the impugned order, the authorities had come to a finding that, there was an escapement of income tax chargeable to tax for the relevant assessment year. Consequently, the authorities, by the impugned order have decided that it was a fit case to issue a notice u/s 148 of the Act of 1961 for the relevant assessment year. Issue of limitation had been taken by the appellant before the authorities. Appellant had also taken the point of limitation and contended that the authorities wrongly assumed jurisdiction by deciding the issue of limitation erroneously before the learned Single Judge. Contention of the appellant with regard to lack of jurisdiction has revolved around the new regime of limitation that had been introduced with effect from April 1, 2021 by the substituted provisions of Sections 147 to 151 particularly Section 149 of the Act of 1961 by the Finance Act, 2021. In the facts of this case, the appellant had suffered a notice under Section 148 of the Act of 1961 on April 30, 2021. Such notice had been set aside by the High Court on February 22, 2022. The appellant and the department are governed by the directions of Ashish Agarwal 2022 (5) TMI 240 - SUPREME COURT which had issued directions relating to all notices issued under Section 148 after April 1, 2021. The department by a letter dated May 23, 2022 had provided the materials based on which the proceedings had been initiated. To that the appellant had submitted a response dated June 5, 2022. The impugned order dated July 28, 2022 passed under Section 148A (d) of the Act of 1961 had dealt with the response of the appellant dated June 5, 2022 in extensor. In fact, the impugned order dated July 28, 2022 of the Authorities had set out the entirety of the response of the appellant dated June 5, 2022 in its body and arrived at the finding that, the reply given was not tenable. The impugned order has also ascribed reasons why the reply of the appellant was not found to be tenable. The impugned order of the authorities under Section 148A (d) of the Act of 1961 cannot be said to be vitiated by breach of principles of natural justice. The appellant had been heard before passing of the order. Appellant had submitted a response to the show-cause notice and filed written submissions which were considered by the Authorities. The impugned order, as noted above, cannot be said to without reasons for arrival at the decision recorded. Learned Single Judge has exercised discretion not to entertain the writ petition. Learned Single Judge has proceeded to hold that there was no violation of the principles of natural justice or that there was any procedural defect in arriving at the impugned decision dated July 20, 2022 of the Authorities - No ground to interfere in the appeal

Issues Involved:

1. Validity of the jurisdictional notice issued under Section 148 of the Income Tax Act, 1961.
2. Applicability of the limitation period for reopening assessment.
3. Compliance with the principles of natural justice.
4. Maintainability of the writ petition.

Summary:

1. Validity of the jurisdictional notice issued under Section 148 of the Income Tax Act, 1961:

The appellant challenged the jurisdictional notice issued under Section 148 of the Act of 1961, arguing that it was not issued by the National Faceless Assessment Centre (NFAC) as required by CBDT Notification No. 18/2022 dated March 29, 2022. The Supreme Court in Ashish Agarwal (supra) held that Section 148 notices issued under the un-amended Section 148 shall be deemed to have been issued under Section 148A and construed as show-cause notices in terms of Section 148A(b) of the Act. The department issued a notice dated May 23, 2022, giving the materials based on which the proceedings under Section 148 had been initiated. The appellant's response dated June 5, 2022, was considered, and an order under Section 148A (d) was passed.

2. Applicability of the limitation period for reopening assessment:

The appellant contended that reopening the assessment for the Assessment Year 2015-2016 was barred by limitation under the first proviso of Section 149 (1) of the Act of 1961. The Supreme Court in Ashish Agarwal (supra) noted the new regime of limitation introduced by the Finance Act, 2021, and issued directions for events happening before and after April 1, 2021. The impugned order dated July 28, 2022, dealt with the issue of limitation, holding that the case fell under the definition of an asset as per Clause b of Section 149 (1) of the Act of 1961. The authorities found that a sum of Rs. 1,34,84,500 had been deposited by the appellant without supporting documentary evidence, leading to the conclusion of income tax escapement.

3. Compliance with the principles of natural justice:

The appellant argued that the order of the assessment officer suffered from a breach of principles of natural justice as the objections raised were not considered. The court found that the appellant had been heard before passing the order, and the response to the show-cause notice was duly considered. The impugned order was found to be reasoned and not vitiated by any breach of natural justice principles.

4. Maintainability of the writ petition:

The appellant relied on several judgments to argue the maintainability of the writ petition, including Calcutta Discount Co. Ltd. (supra) and Radha Krishan Industries (supra), which discussed the conditions under which a writ petition is maintainable despite the existence of an alternative remedy. The court noted that the learned Single Judge exercised discretion not to entertain the writ petition, finding no procedural defect or violation of natural justice in the impugned decision.

Conclusion:

The court found no ground to interfere in the appeal, and thus, M.A.T. 162 of 2023 along with IA No: CAN 1 of 2023 were dismissed without any order as to costs.

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