2023 (1) TMI 1494 - HC - Income Tax

Quashing requires fresh consideration under Section 148A(d), assessee hearing and reply before issuing any Section 148 notice

Mrs. Anitha Radhakrishnan Versus Income Tax Officer, Non-Corporate Ward 7 (1), Chennai, The Faceless Assessment Officer (FAO), Chennai

HC quashed the impugned orders and remanded proceedings for reconsideration from the stage of Section 148A(d). Court held an order under 148A(d) is a ... Reopening of assessment u/s 147 - AO to issue orders within seven days from the date of receipt of the reply of the petitioner - HELD THAT:- An order u/s 148A(d) is an essential pre-requisite for the issuance of notice u/s 148 for re-assessment proceedings in relation to escaped assessment. Put differently, unless an opinion is formed, pursuant to an inquiry, that there are reasonable grounds to initiate proceedings in relation to escaped assessment, a notice u/s 148 cannot be issued. Therefore, once the order u/s 148A(d) was quashed by this Court, the respondent was required to consider the petitioner's reply to the notice u/s 148A(b) and issue a fresh order u/s 148A(d). After such order was passed, a fresh notice under Section 148 should have been issued. Hence, accept the contention of learned counsel for the petitioner. Order was issued beyond the time limit of seven days - As appears that the petitioner submitted a reply only on 20.06.2022 which seems to have been received by the respondent on 21.06.2022. Apart from the explanation that the order was within the time limit fixed by this Court if the intervening week-end was taken into consideration, also find that Section 148A(d) provides a statutory time limit of 30 days from the date of receipt of the reply from the assessee. The assessment order was also assailed on the substantive ground that the response of the petitioner in reply dated 24.03.2023 was not taken into consideration. On examining the impugned assessment order, find that the said contention is liable to be accepted because there is no indication in the impugned order that the petitioner's contentions were taken into account. The petitioner also assailed the impugned assessment order on the ground that the virtual hearing proceeding was ineffective. The purpose of a personal hearing, whether physical or virtual, is to enable the assessee to make submissions, provide clarifications and respond to questions, if posed. This can only be achieved if such hearing is interactive. As submitted that faceless assessments were introduced so as to avoid the deleterious consequences of direct interaction. Even making an allowance for the same, an appropriate mechanism should be evolved by the Income-tax Department to ensure that such hearings are conducted in a meaningful manner. For all the reasons discussed above, the orders impugned herein call for interference and are hereby quashed. The order u/s 148A(d) of the Income-tax Act was issued without providing a reasonable opportunity to the petitioner, the proceedings are remanded for reconsideration from that stage. AO shall provide a reasonable opportunity to the petitioner and thereafter issue fresh orders u/s 148A(d) of the Income-tax Act. If appropriate, a notice u/s 148 may be issued thereafter in accordance with law. ISSUES PRESENTED AND CONSIDERED 1. Whether, after an order under Section 148A(d) is quashed, the Assessing Officer must reconsider the assessee's Section 148A(b) reply and pass a fresh order under Section 148A(d) before issuing any subsequent Section 148 notice. 2. How the time-limit for passing a fresh order under Section 148A(d) is to be computed in light of a judicial direction fixing a seven-day period and the statutory timeline under Section 148A(d) (30 days from receipt of the reply). 3. Whether an assessment order is vitiated where the Assessing Officer does not indicate consideration of the assessee's substantive replies and where the virtual/personal hearing was non-interactive or otherwise ineffective. 4. The relevance and application of Section 292BB (estoppel against objection to non-receipt of notice where assessee participates) to objections regarding issuance/receipt of notices in the reassessment proceedings. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Requirement to pass a fresh Section 148A(d) order after quashing the earlier order Legal framework: Section 148A(d) requires formation of an opinion, after inquiry contemplated by Section 148A, that there are reasonable grounds to initiate proceedings for escaped assessment; such opinion is a pre-requisite to issuance of a Section 148 notice. Interpretation and reasoning: The Court reasoned that an order under Section 148A(d) is an essential pre-condition for valid issuance of a Section 148 notice. Where the earlier Section 148A(d) order was quashed, the statutory requirement to form a fresh opinion following consideration of the assessee's reply cannot be bypassed. The quashing restored the status quo such that any subsequent re-assessment step must be preceded by a fresh, valid Section 148A(d) order based on the petitioner's reply. Precedent treatment: The Court applied statutory logic rather than distinguishing or overruling decided cases; it treated the statutory sequence as determinative. Ratio vs. Obiter: Ratio - where an order under Section 148A(d) is quashed, the Assessing Officer is required to reconsider the assessee's Section 148A(b) reply and pass a fresh order under Section 148A(d) before issuing a Section 148 notice. Conclusion: The Court accepted the contention that a fresh Section 148A(d) order was required and remanded proceedings to that stage for fresh consideration and, if appropriate, fresh notice under Section 148. Issue 2 - Computation of the time-limit for passing the fresh Section 148A(d) order Legal framework: Section 148A(d) prescribes a statutory period of 30 days from the date of receipt of the assessee's reply for passing the order contemplated by Section 148A(d); the judicial order in the earlier writ directed issuance within seven days from receipt of the petitioner's reply. Interpretation and reasoning: The Court examined both the court-fixed seven-day timeline and the statutory 30-day period. It found evidence that the assessee submitted the reply on 20.06.2022 and the department received it on 21.06.2022. The Court noted submissions about weekends but concluded that, independently, Section 148A(d)'s 30-day statutory limit further validated the timeliness of the order dated 30.06.2022. Precedent treatment: No direct precedent was relied upon to alter computation principles; statutory text and factual receipt date governed the decision. Ratio vs. Obiter: Ratio - computation of time for Section 148A(d) must be made from the date of receipt of the reply; where a court has fixed an accelerated period, actual receipt date and statutory period (30 days) remain material for assessing compliance. Conclusion: The Court found that the order dated 30.06.2022 fell within permissible timelines when receipt date and statutory 30-day period are considered; however, because the earlier order had been quashed, the more fundamental defect (see Issue 1) prevailed and required remand. Issue 3 - Validity of assessment where assessee's substantive replies were not considered and the hearing was non-interactive Legal framework: Principles of natural justice and statutory mandate of providing a reasonable opportunity of being heard (including meaningful personal/virtual hearings) require that the Assessing Officer consider the assessee's submissions and replies before passing an assessment order. Interpretation and reasoning: The Court inspected the impugned assessment order and found no indication that the petitioner's replies (notably the reply dated 24.03.2023 and earlier replies) were taken into account. The Court emphasized that the purpose of a personal hearing (physical or virtual) is interactive engagement - submissions, clarifications and responsive questioning. The Court observed that faceless/virtual procedures cannot be an excuse for non-consideration; an appropriate mechanism must ensure hearings are meaningful. Precedent treatment: The Court reiterated general natural justice norms and procedural fairness in the context of faceless assessments; no precedent was overruled or specifically followed beyond applying these principles to the facts. Ratio vs. Obiter: Ratio - an assessment order is vitiated where there is no indication that the assessee's substantive replies were considered and where the hearing was non-interactive such that the assessee was denied a reasonable opportunity to make effective submissions. Conclusion: The Court accepted the challenge to the assessment on substantive and hearing-procedure grounds and quashed the assessment, remanding for reconsideration from the point of fresh Section 148A(d) order with a direction to provide a reasonable opportunity and to ensure meaningful hearings. Issue 4 - Applicability of Section 292BB to objections about notice/receipt Legal framework: Section 292BB bars an assessee from objecting to the validity of notice or proceedings on the ground of non-service of notice if the assessee has participated in the proceedings. Interpretation and reasoning: The Court noted the respondent's reliance on Section 292BB to argue that the assessee, having participated, could not subsequently object to non-receipt. The Court did not rest its decision on Section 292BB but considered statutory compliance and adequacy of opportunity and fresh formation of opinion under Section 148A(d). The reasoning focused on whether procedural prerequisites and meaningful hearing requirements were met rather than estoppel under Section 292BB. Precedent treatment: Treated as a raised defense but not determinative; the Court did not apply Section 292BB to shut down the assessee's contest where fundamental statutory preconditions and failure to consider replies were shown. Ratio vs. Obiter: Obiter - the presence of participation under Section 292BB does not override the requirement that the Assessing Officer form a fresh opinion under Section 148A(d) after a quashed order nor does it cure substantive non-consideration of replies or denial of a meaningful hearing. Conclusion: Section 292BB was acknowledged but not accepted as dispositive; it did not preclude judicial intervention where the statutory sequence and fair-hearing requirements were not complied with. Overall disposition and operative conclusions (cross-reference) Because the earlier Section 148A(d) order had been quashed, the Assessing Officer was required (Issue 1) to reconsider the assessee's replies and pass a fresh Section 148A(d) order before issuing any Section 148 notice; failure to show consideration of the assessee's substantive replies and absence of a meaningful hearing (Issue 3) vitiated the assessment; time computation issues (Issue 2) did not salvage the proceedings given the primary defect; Section 292BB (Issue 4) was not held to cure these defects. The Court therefore quashed the impugned orders and remanded for fresh action from the stage of Section 148A(d), directing that a reasonable opportunity and meaningful hearing be afforded and that further action conform to law.