TaxTMI 
TaxTMI 
2020 (1) TMI 695
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.... 13, dated 13.09.2019, issued by the same authority i.e., Assistant Commissioner of Income-Tax, Circle-1(1), Visakhapatnam. It has been prayed to quash the same. 2. It has been pleaded that the petitioner, for the assessment year 2012-13, had filed its return of income on 18.09.2012 declaring the total income as Rs. 15,41, 278/-. The case of the petitioner was selected for a scrutiny under Computer Aided Scrutiny Selection (hereinafter referred to as 'CASS') and a notice was served on the petitioner. The petitioner appeared and filed its response and by assessment order, dated 10.03.2015, total tax payable by the petitioner was assessed as Rs. 37,150/-, which was later paid. On 19.03.2019, the petitioner was served with a notice, under Section 148 of the IT Act, which is impugned herein. As per the notice dated 19.03.2019, the petitioner was informed that there was reason to believe that his income chargeable to tax for the assessment year 2012-13 had escaped assessment within the meaning of Section 147 of the IT Act and it was proposed to re-assess the income/loss. The petitioner by the said notice was asked to submit his returns within a period of 30 days in the prescribed ....
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....chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for his assessment is very high and it cannot be a mere fishing enquiry based on some information and the same has to reflect in the notice itself; b) As four years have been lapsed from the assessment year, the impugned notice or the subsequent order should specify as to the quantum of the escaped income which is mandatory to obtain sanction under Section 151 and assume jurisdiction, without which the reassessment proceedings are without jurisdiction, hopelessly time barred and are based on incorrect and glaring factual errors; and c) The reasons to believe contain no reasons but the conclusions of the Assessing Officer allegedly basing on the information provided by the investigating wing. Indeed it is a 'borrowed satisfaction'. 5. In respect of the aforesaid contentions, he has placed reliance on a case reported in Kohinoor Hatcheries Private Limited v. Deputy Commissioner of Income-Tax and another [2016] 389 ITR 493 (T&AP) and referred to Paragraphs 10 and 11 of th....
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....sh Kumar Gupta and others v. Commissioner of Income Tax and another [2014] 363 ITR 300 (AII) and Tecumseh Products India Private Limited v. Assistant Commissioner of Income-Tax and another [2014] 361 ITR 429 (AP). It has been further argued that the important safeguards provided in sections 147 and 151 are to be strictly followed by the AO and argued that the Assessing Authority before taking any steps under section 148 was required to be satisfied on prima-facie grounds not in a mechanical manner. He further submits that the Hon'ble Supreme Court in a case reported in Chhugamal Rajpal v. S.P. Chaliha and others [1971] 79 ITR 603 (SC), held that before issuing notice under Section 148 of the IT Act, the Income Tax Officer must have either reasons to believe that by reason of the omission or failure on the part of the assessee to make a return under Section 139 for any assessment year to the Income-Tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year or alternatively notwithstanding that there has been no omission or failure as mentioned above on the part of the assesse....
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....teria. He wanted to persuade the Court to go into the details as to whether the petitioner had earlier declared capital gain in the return of his income or not. Learned counsel for the petitioner has canvassed as if the reason according to respondent No.2 herein for reopening the assessment proceedings is that the petitioner has not declared capital gain in the return of income and therefore as the petitioner fully and truly did not declare the material facts, re-assessment is sought to be justified. This reason of the respondent is factually incorrect as the petitioner under Schedule-EI against Item No.3 in his Return of Income "Long Term Capital Gains from transaction on which Securities Transaction Tax is paid" has clearly declared the Long Term Capital Gain (LTCG) for the Assessment Year 2012-13 as Rs. 27,06,612/- which was the net gain on account of sale of 4,800 shares of M/s BSR Finance and Constructions Limited and 6,000 shares of M/s Oasis Cine Communication Limited and that as the petitioner has held these shares for more than one year, exemption from tax was sought. It is also alleged in the notice and order by the 2nd respondent that the petitioner has sold shares of th....
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....the writ petition. She argued that the petitioner himself violated the conditions imposed in the impugned notice, dated 19.03.2019, since he, within 30 days of the receipt of notice, had not filed return, which was a condition precedent. She further submits that even after reopening of the case, the petitioner was having ample opportunity to take defense, during reassessment proceedings. Even after order of re-assessment, there are number of statutory remedies available to the petitioner to raise his grievance but circumventing the statutory remedy, the petitioner has straightaway invoked the extraordinary writ jurisdiction of this Court, which is to be invoked in exceptional cases. 12. According to learned standing counsel, in financial matters, if there is a statutory remedy, the High Court may refrain from interfering in a proceeding which is yet to commence. Admittedly, in the present case, notice was issued which was in consonance with the provisions contained in Section 151 as well as first proviso to Section 147 of the IT Act. 13. The reason regarding escape of chargeable tax is very much evident on a perusal of the communication contained in F.No.ACIT- 1(1)/Vsp/AGVPK0....
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....he petitioner having received a sum of Rs. 19,53,899.55/- out of sale of shares of the company M/s Ecowave Infotech Limited (previous name Oasis Cine Communications Limited) had neither declared any capital gain nor reflected the said transaction in its return of income for the year 2012-13. The fact has been disclosed in the counter-affidavit that the petitioner filed the return of income for the AY 2012-13 on 18.09.2012 declaring total income at Rs. 15,41,278/-. Under the head 'Income from House Property' the petitioner had declared an income of Rs. 79,500/-, Rs. 24,442,75.46/- under the head 'Income from Business or Profession', Rs.'0' under the head 'Capital Gains' and 8,77,747.11/- under the head 'Income from Other Sources' and claimed a total deduction of Rs. 1,04,751/- U/s.80C and 80D of the Income Tax Act. The case had been selected for scrutiny under CASS for the reason that the petitioner had claimed "Large Deductions claimed U/s.57 of the Act". Subsequently, the assessment was completed vide order dt.10.03.2015 U/s.143(3) of the IT Act, making an addition of Rs. 1,00,760/- U/s.8 R/w. Section 2(22)(e) of the IT Act. During the assessment proceedings, neither there were....
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....es, we have minutely examined the material on record. Normally, in view of the nature of the present dispute, there was no reason to give a detailed hearing but since learned counsel for the petitioner has elaborately argued the case, both on maintainability as well as merits of the case, we were persuaded to examine the same and even we perused the original record produced by learned Standing Counsel for our satisfaction as to whether the Assistant Commissioner of Income-Tax, Visakhapatnam, before reopening the assessment under the first proviso to Section 147 of the IT Act, had got approval of the Commissioner under Section 151 of the IT Act or not. On examination, we are satisfied that this was with the approval of the Commissioner and it was in consonance of Section 151 of the IT Act and as such without any apparent illegality or without a case of having no jurisdiction by respondent No.2, there is no reason to deal with the factual aspects. Otherwise also if any observation is recorded by this Court on merits of the case, certainly, it may affect either of the parties in the ensuing assessment pursuant to the impugned notice. 18. Learned Standing Counsel for the Income-Tax,....
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....on if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55. It is a matter of serious concern that despite repeated pronouncement of this court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have....