2023 (5) TMI 1294 - HC - Income Tax

Court Confirms Legality of 2016-17 Tax Order; No Procedural Flaws Found, Petitioner May Present Case in Future.

The HC upheld the legality of the impugned order under Section 148A(d) of the Income Tax Act, 1961, for the assessment year 2016-17, stating it was based ... Validity of reassessment proceedings - legality of the impugned order u/s 148A(d) - reopening merely on the basis of remarks “potential borrower/lender” - as argued AO has relied on some investigation report from the office of the DGIT (Investigation) where some remarks was made as “potential borrower/lender” and it is the case of the petitioner that impugned proceeding on the basis of the alleged remarks of “potential borrower/lender” without naming or disclosing anything in detail against the petitioner, is legally not sustainable - HELD THAT:- Such allegation of petitioner that the assessing officer has proceeded merely on the basis of remarks “potential borrower/lender” is not correct since in the later part of the order assessing officer has clarified that on verification of the document the assessing officer has found credible evidence of actual borrowings and not potential in nature. It has also been recorded by AO in the impugned assessment order that it is evident that the assessee has availed cash loan through finance broker from different lenders and it has also been recorded that there is a huge unexplained expenditure within the meaning of Section 69C of the Act and that the cash loan and repayment in cash comes within the crux of provision 269SS and 269T and other relevant provisions of penalty under the aforesaid Act. As find on perusal of the aforesaid impugned order u/s 148A(d) of the Act that the same is based on huge materials and evidence regarding the alleged transaction and that Court in exercise of Constitutional Writ Jurisdiction cannot act as an assessing officer and scrutinize those facts and evidence and substitute the same with its own. Thus aforesaid impugned order is neither a nonspeaking order nor any violation of principles of natural justice nor any procedural irregularity has been committed during the proceeding nor the impugned order has been passed by an officer having inherent lack of jurisdiction which is based on facts and findings and materials evidence. The aforesaid factors should not be ignored. In addition the order under Section 148A(d) of the Act is neither a final assessment order nor any demand arises out of such order and petitioner still will have ample opportunity and scope to make out a case in its favour in proceeding subsequent to the order passed under Section 148A(d) of the Act. This writ petition stands disposed of. ISSUES PRESENTED AND CONSIDERED 1. Whether the order passed under Section 148A(d) of the Income Tax Act, 1961 is legally sustainable where the assessing officer purportedly relied on an investigation-office remark described as 'potential borrower/lender' without disclosing particulars. 2. Whether the impugned Section 148A(d) order is a nonspeaking order, violates principles of natural justice, or suffers procedural infirmity or want of jurisdiction such that it must be quashed. 3. Whether a writ court, exercising constitutional writ jurisdiction, may reappraise the factual materials and evidence on which the assessing officer acted when scrutinizing the validity of an order under Section 148A(d). 4. Whether irregularity in the verification/affirmation of the writ petition (by a deponent who is not an employee or related to the petitioner and describes himself as a businessman and constituted attorney) requires remedial action by the assessment authority or affects the impugned order. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Reliance on 'potential borrower/lender' remark for issuing order under Section 148A(d) Legal framework: Section 148A(d) permits issuance of notice/reopening where the assessing officer forms satisfaction on material that income has escaped assessment; the order must be based on credible materials and reasons for reopening. Precedent Treatment: The judgment does not cite or apply any specific precedents; no earlier authority is adopted, distinguished, or overruled in the reasoning. Interpretation and reasoning: The Court examined the impugned order and found that the assessing officer did not rely solely on an ambiguous remark 'potential borrower/lender.' The assessing officer, upon document verification, recorded affirmative findings of actual borrowings - namely cash loans totalling Rs. 40,70,00,000/- obtained through a finance broker and repayments in cash - and identified unexplained expenditure under Section 69C and potential contraventions of Sections 269SS/269T and penalty provisions. Those recorded facts and documentary material demonstrate that the reopening was founded on concrete evidence rather than mere speculative remarks. Ratio vs. Obiter: Ratio - where the order under Section 148A(d) is supported by credible documentary evidence that translates an investigatory remark into findings of actual borrowings, the reopening is not vitiated merely because the initial lead contained the word 'potential.' Conclusion: The challenge that the order was based only on the 'potential borrower/lender' remark is unsustainable; the order is supported by materials establishing actual transactions and thus legally tenable on that ground. Issue 2 - Whether the Section 148A(d) order is nonspeaking, violative of natural justice, procedurally irregular, or passed by an officer without jurisdiction Legal framework: Administrative orders must be speaking to reveal reasons, comply with principles of natural justice, and be passed by an officer vested with jurisdiction; procedural fairness requires that the assessee have opportunity to meet the case, and courts may quash orders for jurisdictional defects or denial of natural justice. Precedent Treatment: No precedent was invoked or considered to determine what constitutes a nonspeaking order or specific procedural defects in the context of Section 148A(d). Interpretation and reasoning: On reading the impugned order, the Court found it to set out factual findings (document verification, identification of loans, amounts, brokers, names of lenders, and alleged statutory contraventions). The order therefore contains stated reasons and is not nonspeaking. There is no record of breach of principles of natural justice or of other procedural irregularity, nor any finding that the officer lacked jurisdiction. The Court emphasized that the order constitutes a step in the assessment process and is not a final assessment creating any demand. Ratio vs. Obiter: Ratio - an order under Section 148A(d) that records material facts, documentary verification, and statutory consequences is not rendered void as nonspeaking or procedurally defective in absence of a demonstrated denial of natural justice or jurisdictional defect. Conclusion: The impugned Section 148A(d) order is neither nonspeaking nor procedurally vitiated; no jurisdictional infirmity or breach of natural justice was shown to warrant interference. Issue 3 - Scope of judicial review in writ jurisdiction vis-à-vis reassessment of facts and evidence Legal framework: Writ jurisdiction permits scrutiny of legality, jurisdictional error, and procedural fairness but does not permit the court to act as an appellate fact-finder or to reappraise evidence as an assessing officer would. Precedent Treatment: The Court did not reference specific authorities but applied the established principle that constitutional courts should not substitute their own appreciation of primary facts where material and reasons exist. Interpretation and reasoning: The Court observed that the impugned order is based on 'huge materials and evidence' and held that it cannot, in writ proceedings, re-evaluate the factual matrix or supplant the assessing officer's conclusions with its own factual assessment. The appropriate forum for contesting factual findings and adducing contrary evidence remains the subsequent assessment proceedings and appellate remedies under the Act. Ratio vs. Obiter: Ratio - in the absence of legal or jurisdictional defect, a writ court will not reappraise or reweigh factual materials underpinning an order under Section 148A(d). Conclusion: The Court declined to disturb the impugned order on merits of factual appreciation, leaving the petitioner to challenge and adduce evidence in the statutory proceedings that follow the Section 148A(d) order. Issue 4 - Irregularity in petition verification by an unrelated deponent and consequential directions Legal framework: Affidavits and verifications in court filings should correctly identify the deponent and the basis of his authority; misdescription or improper verification can warrant investigation or corrective measures but does not automatically annul an order unless it affects tribunal jurisdiction or fairness of proceedings. Precedent Treatment: The judgment does not refer to any authority on the legal consequences of improper verification; instead, it records facts and issues administrative direction. Interpretation and reasoning: The record showed that the writ petition was affirmed by a person describing himself as a businessman and constituted attorney though not an employee or relative of the petitioner. This raised questions about the deponent's status and business activities. Rather than treating this as ground for quashing the tax order, the Court directed the petitioner's counsel to provide a copy of the deponent's PAN to the assessing authority so that the department could inquire into the deponent's business activity and transactions and report back to the Court. The Court fixed a date for the assessing officer to file a report. Ratio vs. Obiter: Obiter/Ratio (procedural): The direction to verify the deponent's PAN and business activity is an ancillary procedural directive aimed at fact-finding; it does not form the central ratio on the validity of the Section 148A(d) order but is necessary given the irregularity in verification. Conclusion: The Court did not treat the verification irregularity as invalidating the impugned order; instead it issued a direction to the tax department to investigate the deponent's credentials and furnish a report to the Court for further consideration. Overall Disposition Where an order under Section 148A(d) is supported by documentary material and recorded factual findings of actual borrowings and statutory contraventions, the writ court should not overturn the order on the basis that the initiating investigatory note used the term 'potential'; in absence of shown jurisdictional defect, denial of natural justice, or procedural infirmity, the court will not reappraise evidentiary conclusions and will allow statutory proceedings to continue. Procedural anomalies in petition verification may prompt directed inquiries but do not automatically vitiate the assessment-stage order.