2023 (7) TMI 1346 - HC - Income Tax

Can a Vagueness Claim in Income Tax Notice Be Raised on Appeal Without Prior Tribunal Challenge?

Veena Estate Pvt. Ltd Versus Commissioner of Income Tax, Mumbai

The HC addressed the issue of whether a technical plea of vagueness in a notice under Section 271(1)(c) of the Income-tax Act, 1961, can be raised in an ... Question not raised before the tribunal but before High Court in the proceedings u/s 260-A - defect in the notice issued u/s 271(1)(c) - whether an assessee can be permitted to raise a technical plea of vagueness in the notice when the same was never the case of the assessee before the tribunal? - HELD THAT:- In our prima facie opinion, the appellant needs to satisfy the Court whether the appellant can at all urge such contention in the proceedings of a Section 260-A appeal when admittedly such question of law is not raised in the present appeal. In our opinion, in the facts of the present case, if the appellant intends an additional question to be framed in this regard, the same cannot be done without the appellant crossing the barrier of the test of specific prejudice, if any caused to it in responding to such notice issued u/s 271(1)(c) of the Act, is satisfied. The question therefore would be that when the assessee never raised a plea that the assessee did not understand such notice issued to him and/ or acquiesced and conceded in the adjudication of such notice, without any plea of prejudice being taken at any point of time, then in such circumstances, can the assessee take a plea before the High Court calling upon it to take a view that although no prejudice on such count was earlier felt and suffered, merely because it is now technically noticed that there was a defect in the notice by non striking of the applicable option, it should be deemed to be presumed that a prejudice was caused to the assessee and therefore, on such count, the penalty proceedings be declared illegal. In our opinion, although Ventura Textiles Ltd. [2020 (6) TMI 305 - BOMBAY HIGH COURT] has although considered such issue being raised as a jurisdictional question in the proceedings of 260-A of the Income Tax Act, however, as to what would be the position as would be reflected from the settled principles of law that there cannot be a plea of breach of principles of natural justice or a prejudice, unless the threshold test of a “factual prejudice” being caused is satisfied, for the Court to accept such plea, is not what has been expressly considered. As contended that the decision in Ventura Textiles Ltd. (supra) was also considered by the Full Bench of this Court in Mohd. Farhan A. Shaikh [2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)]. We have perused the judgment of the Full Bench, however, the issue which we have raised appears to have not been answered by the Full Bench, is what we note. We would accordingly hear the parties on these issues on the adjourned date of hearing. Stand over to 27 July, 2023 at 02.30 p.m. Issues involved: The alleged defect in the notice issued under Section 271(1)(c) of the Income-tax Act, 1961 and the permissibility of raising a technical plea of vagueness in the notice when it was not previously raised by the assessee before the tribunal.Summary:Alleged Defect in Notice under Section 271(1)(c): The appellant contended that the issue regarding the defect in the notice under Section 271(1)(c) of the Act was covered by a decision of a co-ordinate Bench of the Court. The Court observed that even if a question was not raised before the tribunal, it can be raised before the High Court in proceedings under Section 260-A of the Act, especially when the issue concerns jurisdiction. However, the appellant needs to demonstrate whether the technical plea of vagueness in the notice can be raised in the appeal under Section 260-A without any such plea before the lower forums. The Court emphasized that the appellant must show specific prejudice caused by the notice to warrant framing an additional question in this regard.Permissibility of Raising Technical Plea: The Court questioned whether the assessee can raise a plea of vagueness in the notice when it was never raised before and no prejudice was claimed. The Court highlighted the importance of demonstrating factual prejudice before alleging breach of natural justice or prejudice. Although previous decisions were considered, the specific issue raised in this case was not addressed. The Court decided to hear further arguments on these issues on the adjourned date of hearing.Conclusion: The Court will continue to deliberate on the permissibility of raising technical pleas regarding defects in notices under Section 271(1)(c) and the requirement to establish specific prejudice before claiming illegality in penalty proceedings. The decision will be further discussed at the next hearing scheduled for 27 July 2023.