2023 (11) TMI 1424 - HC - Income Tax

Right to adequate reply time: inadequate notice period due to intervening holidays warrants setting aside and remand for fresh order.

A tax notice under the Income-tax Act requires a clear, adequate period to enable a taxpayer to file a reply; where intervening holidays effectively ... Validity of reopening of assessment - failure to grant a clear seven days' time to file a reply to the notice - Allegation of procedural irregularity - HELD THAT:- Case of petitioner that no clear seven days time was granted and three holidays intervened between the aforesaid period which is an admitted position and could not be denied by learned advocate representing the respondent/revenue. This writ petition is disposed of by setting aside the aforesaid impugned order dated 6th April, 2023 and the matter is remanded back to the Assessing officer concerned to pass fresh speaking order in accordance with law after giving opportunity of hearing to the petitioner or his authorised representative. Issues: Whether the impugned order under Section 148A(b) of the Income-tax Act, 1961 was vitiated by procedural irregularity for failure to grant a clear seven days' time to file a reply to the notice; and whether the impugned order should be set aside and the matter remitted for fresh consideration after affording opportunity to reply.Analysis: The petition challenges the order passed under the statutory procedure prescribed by Section 148A(b) of the Income-tax Act, 1961 on the ground that the requisite clear seven days for filing a reply was not effectively granted due to intervening holidays. The issue was examined by reference to the statutory requirement of an adequate, clear period to enable a taxpayer to file a response to a notice under the provision, and by reference to relevant precedent on notice-period compliance. In the factual matrix before the Court, three holidays intervened within the period specified in the notice, and the respondent did not controvert that fact. The impugned order was therefore assessed for procedural infirmity arising from inadequate opportunity to be heard and failure to comply with the statutory timeline requirement.Conclusion: The impugned order dated 6th April, 2023 is set aside and the matter is remitted to the assessing officer to pass a fresh speaking order in accordance with law after giving the petitioner or an authorised representative an opportunity to be heard and after considering the petitioner's reply to the notice. The petitioner is directed to file the reply within two weeks from date, and the assessing officer is directed to pass the fresh order within four weeks from receipt of such reply; in default the impugned order shall revive.Ratio Decidendi: A proceeding under Section 148A(b) of the Income-tax Act, 1961 requires that a taxpayer be afforded a clear and adequate period to file a reply to the notice; failure to grant such clear time, including where intervening holidays negate the prescribed period, constitutes procedural infirmity warranting setting aside the order and remand for fresh consideration after affording the statutory opportunity to be heard.