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TMI Blog2025 (4) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... is a co-operative society. iii) The notice issued u/s. 148 of the Act dated 29.04.2022 DIN: ITBA/AST/S/148_1/2022-23/1042903688(1) for the assessment year 2018-19 (Annexure-D) issued by the First Respondent in the status of the Firm, since, the Petitioner is not assessable as firm but Petitioner is a co-operative society; iv) The exparte order of assessment dated 27.02.2024 made u/s.147 r.w.s. 144 r.w.s 144B of the Act, in DIN No. ITBA/AST/S/147/2023-14/1061551293(1) by the Second Respondent (Annexure-E) in the status of the Firm, since, the Petitioner is not assessable as firm but petitioner is a co-operative society; v) The exparte penalty order passed u/s. 271AAC (1) of the Act dated 26.08.2024 passed by the Second Respondent in DIN No. ITBA/PNL/F/271AAC(1)/2024-25/1067993678(1) by the Second Respondent (Annexure-F); and vi) The exparte penalty order passed u/s. 272A (1) (d) of the Act dated 12.07.2024 passed by the Second respondent in DIN No. ITBA/PNL/F/272A(1)(d)/2024-25/1066655584(1) by the Second Respondent (Annexure-G); and B. Such other relief or reliefs this Hon'ble Court deems fit, in the interest of justice, in the Petitioner's case. 2. Heard learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Annexure-A3. v) Issue a writ of Certiorari or direction in the nature of a writ of certiorari quashing the penalty order u/s 271F of the Act dated 30/08/2023 bearing DIN No. ITBA/PNL/F/271F/2023-24/1055602356(1), issued by the Respondent No. 2 for the assessment year 2015-16 herein marked as Annexure-A4. vi) Issue a writ of Certiorari or direction in the nature of a writ of certiorari quashing the penalty order u/s 271(1)(c) of the Act dated 04/09/2023 bearing DIN No. ITBA/PNL/F/271(1)(c)/2023-24/1055897499(1), issued by the Respondent No. 2 for the assessment year 2015-16 herein marked as Annexure-A5. vii) Issue a writ of Certiorari or direction in the nature of a writ of certiorari quashing the penalty order dated 18/09/2023 issued u/s 271(1)(b) of the Act bearing DIN No. ITBA/PNL/F/271(1)(b)/2022-23/1050591328(1), issued by the Respondent No. 2 for the assessment year 2015-16 herein marked as Annexure-A6. viii) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity." 2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. In addition to reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on this grievance, it is contended that all further proceedings must fail. Sri Ravishankar S V, the learned counsel for the petitioner, canvasses that the first respondent has caused the aforesaid notice under Section 148A (b) of the IT Act without digital signature and in view of the decision of the High Court of Bombay in Prakash Krishnavtar Bhardwaj vs. Income Tax Officer, reported in [2023] 451 ITR 27 [Bombay], all further proceedings must fail. 3. Sri Ravishankar S V, also submits that during the financial year relevant to the assessment year 2015-16, the petitioner was employed with M/s Varshitha Enterprises, Kunigal; that the proprietor of this enterprise was not keeping good health and therefore had issued necessary mandate to the petitioner to operate the concern's bank account maintained with the Indian Overseas Bank; that the petitioner, bona fide and not intending to disturb the proprietor who was not keeping good health, credited the cash received from the sale of currency to recharge mobiles and utilized the deposits to disburse the same to the Telecom operator, M/s Idea Cellular. 4. Sri Ravishankar S V further submits that the details of these cash deposits an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on all fours to this case, the petition must be disposed of on the ground that the first respondent could not have continued the proceedings based on 148A (b) notice dated 17.03.2022. However, the authorities must be reserved with liberty, subject to all just exceptions in law, to initiate further proceedings. Hence, the following ORDER The petition is allowed and the impugned notice dated 17.03.2022 issued by the first respondent under Section 148A (b) of the Income Tax Act, 1961 [Annexure-A], the subsequent adjudication order dated 30.03.2022 under Section 148A (d) [Annexure-A1] of the IT Act, the notice dated 31.03.2022 under Section 148 of the IT Act [Annexure-A2], the assessment order dated 24.02.2023 under Section 147 read with Section 144 of the IT Act [Annexure-A3] and the consequential penalty orders and demand notices dated 24.08.2023 and 07.07.2023 [Annexures-A4, A5 and A6] are quashed." 7. As can be seen from the order, this Court has come to the categorical conclusion that the notice under Section 148A (b) of the IT Act, is not signed either physically or digitally and the same is illegal, invalid and inoperative and further proceedings pursuant thereto includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee a notice to show cause within such time as may be specified in the notice being not less than seven days but not exceeding thirty days from the date on which said notice has been issued. Since the notice dated 15th March 2023 provides only for five days when the law requires minimum seven days to be given, the notice itself was bad-in-law. 5. Along with reply, Petitioner also provided a photo copy of the notarised affidavit of Petitioner's brother affirmed on 18th March 2023, in which the brother has confirmed of giving gift of Rs.75 Lakhs to Petitioner on 26th March 2019, which is much beyond the relevant Assessment Year. 6. Respondent No. 1 has passed the impugned order dated 31st March 2023 under Clause D of Section 148A of the Act. In the order, Respondent No. 1 states that from the statement issued by HDFC Bank for the period 1st April 2018 to 31st March 2019 of the brother, it is seen that there is a credit entry of Rs.1 Crores on 19th March 2019, out of which Rs.75 Lakhs has been paid to Petitioner on 26th March 2019. Respondent No. 1 also states that the gift deed submitted by Petitioner from the brother has not been notarised. 7. Moreover, Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, on this ground alone, the notice requires to be quashed and set aside. Perhaps, being aware of this position, Respondent No. 1 has chosen not to deal with these objections raised by Petitioner in the reply to the show cause notice. 10. We also found in the said guidelines a provision that the order under Section 148A (d) of the Act shall be sent to assessee along with the approval of the specified authority for such order under Section 148A (d) of the Act. In the case at hand, the approval that has been sent is of some other assessee and not Petitioner. This also indicates non-application of mind by Respondent No. 1. On this ground also, the order dated 31st March 2023 impugned in the Petition is required to be quashed and set aside. 11. Further, in the guidelines to which is annexed a template of the order to be passed under Section 148A (d) of the Act provides for mentioning of amount escaped based on the information and how this amount is represented in the form of assets. It also provides that the Assessing Officer will specify the quantum of income / assets / expenditure / entry which has escaped assessment. This not stated in the order under Clause D of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r at Annexure - A5 dated 04.09.2023 and Penalty order at Annexure - A6 dated 18.09.2023 are hereby quashed. (iii) Liberty is reserved in favour of the respondents to initiate proceedings against the petitioner subject to all just exceptions, in accordance with law." 5. It is therefore submitted that the impugned notice at Annexure - B dated 20.03.2022 under Section 148 A(b) of the IT Act and all proceedings pursuant thereto including the impugned Assessment order notices etc., are vitiated and the same deserves to be quashed. 6. Per contra, learned counsel for the respondent submit that there is no merit in the petition and the same is liable to be dismissed. 7. As rightly contended by the learned counsel for the petitioner, a plain reading under Section 148 A(b) of the IT Act will indicate that the minimum statutory period prescribed therein is 7 days as held by this Court in the case of Janaki Aenuga as stated supra. 8. In the instant case, a perusal of the impugned notice will indicate that it was issued on 20.03.2022 by granting time up to 25.03.2022 to the petitioner to submit his reply which clearly short of the minimum period of 7 days prescribed in the said provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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