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TMI Blog2024 (7) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... Present:- For the Petitioner : Mr. Pulak Raj Mullick, learned counsel. For the Union of India/Respondent no. 1 : Mr. Manoj Kumar, learned Central Government Standing Counsel. For the Respondent nos. 2 3 : Mr. Hari Mohan Bhatia, learned counsel. JUDGMENT (1) By means of this writ petition, petitioner has sought the following relief:- (i) Issue a writ, order or direction, in the nature of certiorari quashing all the assessment proceedings for the Assessment Year 2017-18 in respect of the notices u/s 148A(b) dated 21.03.224, notice u/s 148A(b) dated 29.03.2024 and notice u/s 148A (b) dated 03.04.2024 (Annexure Nos. 4, 5 7); Order u/s 148A (d), notice u/s 148 (issued by respondent no. 3), along with approval u/s 148 (accorded by respondent no. 2) (Annexure No. 8 (colly)); and to hold that the same are unconstitutional, without jurisdiction, void ab-initio, without proper opportunity of hearings and therefore against the principles of natural justice and fair play; (ii) issue a writ, order or direction in the nature of mandamus directing the respondent nos. 2 3 to order de-nova assessment proceedings for the Assessment Year 2017-18, by following the procedures enshrined u/s 148A (a), 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 21.03.2024; while, clause (b) contemplates 30 days notice. He further submits that personal hearing was also not given to petitioner by the Assessing Officer, therefore, the provision contained in clause (b) has been violated. (5) The aforesaid submissions are bereft of merit. Clause (a) of Section 148A is an enabling provision, which empowers the Assessing Officer to conduct enquiry, if needed. In cases where conducting enquiry is found desirable, approval of specified authority would be necessary. Holding of enquiry thus is not mandatory, but discretionary. As such, the provision contained in clause (a) cannot be said to be violated, merely on account of non-holding of enquiry. From perusal of documents enclosed with the writ petition, it is revealed that petitioner was given notice under Section 148A (b) on 21.03.2024 and, thereafter, on his request, time for submitting reply was extended by another day vide notice dated 29.03.2024 and, thereafter, one more notice under clause (b) of Section 148A was issued to him, on 03.04.2024, asking the petitioner to submit all documents, on which he relies, on or before 13.04.2024. Thus, petitioner s complaint that time given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 148 was also issued to petitioner by respondent no.3 on 19.04.2024, asking him to furnish a return in the prescribed form for the Assessment Year 2017-2018, within 90 days. (8) Even otherwise also, the first notice was issued to petitioner on 21.03.2024 and, by the last notice dated 03.04.2024, petitioner was allowed time to file reply till 13.04.2024, therefore, petitioner had more than three weeks to submit complete reply. Learned counsel for the petitioner also contended that personal hearing was not given to petitioner by the Assessing Officer before issuing notice, however, from perusal of record, it is revealed that petitioner had not demanded personal hearing. Learned counsel for the petitioner also contended that the information was not shared with the petitioner by the Assessing Officer, while issuing notice under clause (b) of Section 148A. Perusal of the notice dated 21.03.2024, however, reveals that not only the information, but the investigation report was also shared with him. The information disclosed in Annexure to the notice dated 21.03.2024 is extracted below:- ANNEXURE Information has been received in terms of clause (i) to the Explanation 1 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity to respond to the information/objective material that income chargeable to tax had escaped assessment in his case; a 'decision' of the assessing officer (on the basis of that material and the reply furnished by the assessee), that the material that may have come to the hands of the assessing authority 'suggests', it is a 'fit case' to initiate reassessment proceedings under Section 148 of the Act. 12. Thus, the legislature has carefully departed from the strict test of recording of 'reason to believe' and substituted the same with a lighter and more subjective 'decision' of the assessing officer that it is a 'fit case' to reassess the assessee, based on the 'suggestion' (emerging from perusal of the 'information' i.e. objective/relevant material), that income had escaped assessment at the hands of the assessee. 13. True, in reaching such decision , the assessing authority is obligated to consider only that material that may be relevant (and not extraneous) and the reply that may have been furnished by the assessee, at the same time, it is not the statutory law that he must record specific/objective reasons to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings is not unconnected/disjuncted or contrary to the suggestion directly arising from the information /relevant material received by him-that income has escaped assessment, no minute/detailed examination of that decision is required to be made. (12) Learned counsel for petitioner then submitted that the order under Section 148 (A) (d) of the Act was passed by respondent no. 3, without obtaining prior approval of the specified authority, i.e. Principal Chief Commissioner of Income Tax, and ex post facto approval was obtained after passing the order under clause (d) of Section 148(A). However, from perusal of record, it is revealed that Principal Chief Commissioner of Income Tax had granted approval on 19.04.2024 and the order under clause (d) of Section 148(A) was passed by respondent no. 3, the same day. Thus, the Statutory requirement of prior approval is also met, and the order passed by respondent no. 3 cannot be faulted on this count. (13) Learned counsel appearing for revenue contended that the writ petition is premature, which is filed against a notice under Section 148 of the Income Tax Act, and instead of giving reply to the notice, petitioner has approached this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to have entertained the writ petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the reassessment orders passed and the consequential demand notices issued thereon. 18. In view of the above, we allow this appeal and set aside the judgment and order passed by the High Court in Chhabil Dass Agarwal v. Union of India [Chhabil Dass Agarwal v. Union of India, WP (C) No. 44 of 2009, decided on 5-10-2010 (Sikk)]. We grant liberty to the respondent, if he so desires, to file an appropriate petition/appeal against the orders of reassessment passed under Section 148 of the Act within four weeks' time from today. If the petition is filed before the appellate authority within the time granted by this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No. 44 of 2009, in its judgment and order dated 5- 10-2010 [Chhabil Dass Agarwal v. Union of India, WP (C) No. 44 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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