9911796707
TMI Blog2023 (10) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ; rather, in the instant case, supporting documents have not been provided to the Assessee i.e., without providing the details uploaded on the Insight portal along with the information gathered from the investigation wing and new information uploaded on insight portal has not been provided - reopening notice set aside. - AO directed to supply the RUD tot he assessee - Decided in favour of assessee. - HON BLE MR. JUSTICE RONGON MUKHOPADHYAY AND HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. Rahul Lamba, Adv. Mr. Aditya Mohan Khandelwal, Adv. For the Res. Resp. : Mr. R.N. Sahay, Adv. Mr. Anurag Vijay, Adv. Per Deepak Roshan, J. The instant application has been preferred for the following reliefs:- (i) For issuance of appropriate writ(s)/order(s)/direction(s) including a writ of certiorari for quashing/ setting aside the Order dated 22.03.2023 having Notice No. ITBA/AST/F/148A/2022-23/1051109075(1) passed by Respondent No. 3 under Section 148A(d) of the Income Tax Act, 1961 for the Assessment Year 2019-20, as the same has been passed in violation to the provisions of the Income Tax Act, 1961 as well as the circular issued by the revenue department. (ii) For issuance of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 22.03.2023 bearing DIN Notice No. ITBA/AST/F/148A/2022- 23/1051109075(1) under section 148A(d) of the Act, and also issued notice dated 03.03.2023 under Section 148 of the Act, 1961. 3. Mr. Rahul Lamba, learned counsel for the petitioner submits that the impugned Show Cause Notice (hereinafter referred to as SCN ) dated 03.03.2023 has been issued in utter violation to the provisions of Section 148A of the Act, 1961, inasmuch as, the SCN has been issued without providing details of information/enquiry conducted on which reliance is being placed, along with supporting documents as allegedly enclosed with the impugned SCN. Though the SCN contains three pages; however, no enclosure is attached which can provide details of the information/enquiry conducted on which reliance is being placed, along with supporting documents. It has been further stated that Section 148A(a) of the Act, 1961 deals with conduct of enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment. He contended that conducting of an enquiry is not a necessary condition for issuance of Notice under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of that information was not provided to him. Further, while framing the order u/s 148A(d) of the Act, it was noticed by the Assessing Officer that the Risk Management System (RMS) contains Form No.61A furnished u/s 285BA (1) of the Act by the Sub-Registrar, Registry Office, Kutchery Chowk, Sadar, Ranchi. The details furnished in Form No.61A show that the petitioner had sold its residential property worth Rs.51,70,125/- on 15/06/2018 vide transaction identification number 2018/2097 through its Secretary, Mr. Urbanus Minz, to one Shri Chandra Kant, S/o Shri Suresh Prasad having PAN - ATAPK3659C. It is further submitted that no enquiry report was provided to the petitioner since no enquiry from the third party was ever conducted by the A.O. Whatever and whenever any information was posted in the RMS (Risk Management System) of the Income Tax Portal, the same was duly provided to the petitioner. The information furnished by the Sub-Registrar Ranchi in Form No-61A, though not mentioned in the Annexure to the Notice u/s 148A (b) of the Act, it was provided to the petitioner in the order passed u/s 148A(d) of the Act dated 22.03.2023. Notice u/s 148 of the Act was issued on 22.03.2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een stated that through RMS (Risk Management System), the department is in possession of information that your trust is mostly engaged in real estate business and most of its activities are related to real estate development which are not charitable or religious activity. Accordingly, the aforesaid notice asked the petitioner to submit certain documents/details. In the aforesaid notice, it is specifically stated that whereas I have information which suggests that income chargeable to tax for the Assessment Year 2019-20 has escaped assessment within the meaning of section 147 of the Income Tax Act, 1961. The details of the information/ enquiry conducted on which reliance is being placed, along with supporting documents, are enclosed with this notice. However, interestingly, there were no enclosures with the said notice. Though this fact was pointed out through the reply dated 13.03.2023 filed by the petitioner; despite the said objection of the petitioner, no such required information or supporting documents were provided to the petitioner by the respondents. 6. At this stage it is relevant to state that the notice issued under section 148A(b) of the Act, is in the nature of Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly proposed reopening of the case for the assessment year 2019-20 vide his office letter dated, 15/03/2023. 8. Thus, by going through the aforesaid factual aspect, it appears that the Respondents had issued the Notice u/s 148A(b) of the I.T Act, 1961 in haste and without conducting any enquiry. The enquiry in the present case of the petitioner was conducted subsequent to the issuance of the said notice which may have provided an opportunity to the petitioner to give his explanation/ reply to the findings made in such enquiry, before passing of the Order u/s 148A(d) of the I.T Act or issuance of Notice u/s 148 of the I.T Act, 1961. 9. The Respondent department in its Counter Affidavit (Para-14, 15 and 19 of the Counter Affidavit) has categorically denied that since there was no enquiry conducted from the third party in this case, the question of providing enquiry report does not arise. However, it is evident from the aforesaid paragraph No. 6 and from Para-3 of the Impugned Order dated 22.03.2023 that enquiry was conducted. However, no report of such enquiry was given to the petitioner. In this regard, reference may also be made to Para-32 of the Counter Affidavit which indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the petitioner nor has been made part of Annexure to the Impugned Notice dated 03.03.2023. The Respondents, in Para 2.2 of their Impugned Order dated 22.03.2023 has mentioned about a new piece of information, the relevant para is quoted hereinbelow as ready reference: There was also a new piece information in Insight Portal categorized as High Risk CRIU/VRU that the assessee has sold its residential property worth Rs. 51,70,125/- on 15/06/2018 vide transaction identification number 2018/2097. The assessee has sold this property through its Secretary, Urbanus Minz to one Shri Chandra Kant, S/o Shri Suresh Prasad having PAN-ATAPK3659C. This information has been uploaded by the Sub-Registrar, Registry Office, Kutchery Chowk, Sadar Ranchi. As per information in the Insight Portal, the assessee has also reported total sales in GSTR-1 amounting to Rs. 1,28,85,569/-. As a matter of fact, the Impugned Order is substantially based upon this new piece of information which is further evident from Para-6 of the Impugned Order dated 22.03.2023 itself. Relevant part of Para-6 of the Impugned Order dated 22.03.2023 is quoted hereinbelow for ready reference: The new information uploaded on I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provided to the Petitioner. It is not understood as to how the Petitioner was to know which of the entities it dealt with were filers or non-filers! 9. Further, the impugned order states that a report was prepared against the Petitioner-company which concludes that the assessee had shown bogus purchases from bogus entities to suppress the profit of the company and reduce the tax liability during the years 2015-16 to 2020-21. However, no such report which forms the basis for the 'information' on which the assessment was proposed to be reopened had been provided to the Petitioner. In fact, there are no specific allegations in the show cause notice to which the Petitioner could file a reply. Further, the High Court of Bombay in the matter of Anurag Gupta vs. Income Tax officer Ors. 2023 SCC Online Bom 601 has held as under:- 15. It was urged that the requirement of section 148A(b) of the Act has clearly been spelt out in the direction supra, which envisages that not only information be provided to the Petitioner but also the material relied upon by the revenue for purposes of making it possible to file a reply to the show cause notice in terms of the said Section. 16. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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