2023 (4) TMI 1441 - HC - Income Tax

Reopening under s.147/148 set aside where system acknowledgements showed objections were filed twice; matter remitted for reconsideration

Browntape Technologies Private Limited Versus Assistant Commissioner of Income Tax, Circle 1 (1), Principal Commissioner of Income Tax Panaji, Principal Chief Commissioner of Income Tax, The Union of India

HC set aside the impugned order dated 29.07.2022 reopening assessment under s.147/s.148 because the record established that the petitioner had filed ... Reopening of assessment u/s 147 - order as made without considering the objections filed by the petitioner - HELD THAT:- The petitioner has placed on record the acknowledgement receipt and the acknowledgement number which shows that such response was filed on 11.07.2022. In the response/objections the petitioner had also applied for condonation of delay in filing the response. The issue about condonation no longer survives because the respondents issued to the petitioner yet another notice dated 14.07.2022 seeking to reopen assessment for the year 2016-17. To this fresh notice, the petitioner filed response/objections on 21.07.2022. This is evident from the acknowledgement receipt produced on record by the petitioner. By the impugned order the respondents have concluded that there was a case made out for issuance of notice under Section 148 relevant to AY 2016-17 as the income had indeed escaped assessment. This order records that inspite of the opportunity granted to the petitioner, the petitioner has failed to file any objections to the notices issued. Petitioner's objections were never received. However, there is no response to the two acknowledgement receipts placed on record by the petitioner. There is not even any allegation about such acknowledgment receipts being fabricated documents. These acknowledgement receipts have been generated by the system and in the absence of any doubt about the authenticity of such acknowledgment receipts, there is no case made out to doubt the petitioner's statement made on oath that objections were filed not once but twice to the notices issued by the respondents. Accordingly, we are satisfied that the impugned order was made without considering the petitioner's objections and based on the improper premise that it was the petitioner who had failed to file the objections. On this short ground, the impugned order dated 29.07.2022 will have to be set aside. Accordingly, we set aside the impugned order but grant liberty to the respondents to consider petitioner's objections and pass appropriate orders in accordance with law. All contentions of all parties are specifically left open. Petition challenges order dated 29.07.2022 made under Section 148A(d) of the Income Tax Act, 1961, contending it was passed without considering the petitioner's objections. Notices to reopen assessment for AY 2016-17 were issued on 25.05.2022 and 14.07.2022 pursuant to Supreme Court order dated 04.05.2022 and CBDT Instruction No.01/2022. The petitioner produced system-generated acknowledgement receipts showing objections filed on 11.07.2022 (with a condonation request) and on 21.07.2022 to the fresh notice. The impugned order recorded that 'in spite of the opportunity granted to the petitioner, the petitioner has failed to file any objections.' The respondents' affidavit reiterated that 'the petitioner's objections were never received,' but did not dispute or impugn the authenticity of the acknowledgement receipts. Court found the order was passed without considering the objections and on an improper premise; consequently the order dated 29.07.2022 (and the consequential Section 148 notice dated 29.07.2022) was set aside, with liberty to the respondents to consider the petitioner's objections and pass orders in accordance with law. All other contentions left open; no costs.