TaxTMI 
TaxTMI 
2022 (8) TMI 39
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....ainst the order dated 23rd May, 2022 passed in W.P.A. No.9195 of 2022. The assessee is the writ petitioner. The challenge in the writ petition was to an order passed by the respondent assessing officer dated 13th April, 2022 under Section 148A(d) of the Income Tax Act, 1961 (for brevity, "the Act"). The learned Single Bench was of the opinion that the reply given by the appellant /writ petitioner was considered by the assessing officer and he has passed an order and it will be well open to the assessee to participate in the re-assessment proceedings and the plea that there has been violation of principles of natural justice was negated. Aggrieved by the dismissal of the writ petition, the appellant is before us. 6. Heard Mr. Nirmalya Dasgupta, learned counsel duly assisted by Mr. Patnaik, learned counsel for the appellant/assessee and Ms. Smita Das De, learned senior standing counsel appearing for the respondents. 7. The following facts would be relevant to consider as to what relief the assessee would be entitled to. The assessee is a private limited company was issued a notice under Section 148A(b) of the Act dated 22nd March, 2022 stating that the assessing officer has inf....
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....sted dropping of the proceedings for reopening the assessment. The assessee also requested to provide detail investigation /insight portal report based on which the notice under Section 148A(b) was issued. Along with the said reply dated 9th April, 2022, the assessee submitted the copy of the ledger account for the assessment year 2018-2019, copies of sale invoices, copy of bank statement, copy of ITR acknowledgement and copy of audited balance sheet. 9. The assessee has also uploaded the soft copies of all the attachments sent along with its reply dated 9th April, 2022. Prior to submission of the reply, the assessee was intimated that the reply along with documents has to be submitted by 29th March, 2022. The assessee submitted a representation and requested for adjournment of the proceedings. Accordingly, by notice dated 5th April, 2022, the assessee was advised to submit the reply along with documents not later than 11.00 a.m. on 12th April, 2022. 10. Admittedly, the assessee had submitted the reply along with documents much prior to the said date, i.e. on 9th April, 2022 as noted above. The assessing officer has thereafter proceeded to pass the order under Section 148A(d)....
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....e reply dated 9th April, 2022. Thus, the minimum that was expected from the assessing officer is to furnish the information culled out from the insight portal, afford a further opportunity to the assessee to submit further reply, issue a notice and hear the assessee on the submission they wish to make and thereafter consider the submission, reply and all the documents and pass a reasoned order. Thus, we have to see whether this procedure has been adopted. 13. On going through the order dated 13th April, 2022 impugned in the writ petition, we find that none of these aspects have been adhered to by the assessing officer. The assessing officer no doubt has referred to the assessee's reply dated 9th April, 2022 but there is no discussion as to the objection raised by the assessee in their reply. There is no discussion on the documents, which were placed by the assessee along with the reply with soft copies uploaded in the e-proceeding. Though the assessing officer states that "in the light of the discussion and material available on record he was of the opinion that income chargeable to tax has escaped assessment", there is no discussion on any of the materials, which were placed by....
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....f Divya Capital One Private Limited vs. Assistant Commissioner of Income Tax, Circle-7(1), Delhi & Anr. in WP(C) No.7406/2022 dated 12th May, 2022. We find that the facts in the said case are identical to that of the case before us. The Hon'ble Division Bench had taken note of the new re-assessment scheme introduced by the Finance Act, 2021 and pointed out that the safeguards were brought in the amended re-assessment scheme in accordance with the judgment of the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO, reported in (2003) 259 ITR 19 (SC) before any exercise of jurisdiction to initiate reassessment proceedings under Section 148 of the Act. Further, the Court held that the term "information" as contained in Explanation-1 to Section 148 cannot be lightly resorted so as to reopen assessment and this information cannot be a ground to give unbridled powers to the revenue. Further the Court took into consideration the order which was impugned therein and found the same to be cryptic. The next aspect which the Court considered was whether the petitioner therein was denied effective opportunity to file reply and it was held that the petitioner....
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.... 148A and held as follows:- "4............Firstly, Clause (b) of Section 148A of the Act provides for an opportunity of being heard to the assessee within such time as may be specified in the notice that has to be issued by the Assessing Officer and the period shall be not less than 7 days and but not exceeding 30 days from the date on which such notice was issued together with a power to grant further time on an application made by the assessee. Therefore, the statute gives discretion to the Assessing Officer to fix the notice period and such time limit has to be fixed bearing in mind the principles of natural justice that the assessee should be afforded reasonable and adequate opportunity....... 5. The learned standing counsel would submit that the assessee has submitted his reply which has also been referred to by the Assessing Officer in his order under Section 148A(b) of the Act. As rightly pointed by the learned senior Advocate for the appellant that nowhere in the reply given by the assessee, there is any elaborate discussion about Section 148, 148A of the Act and probably there occurred a factual mistake at the hands of the Assessing Officer. The assessee ....