2023 (2) TMI 1134

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.....2022 passed by the Income Tax Officer in exercise of powers under Section 148A(d) of the Income Tax Act and also simultaneously issuing notice under Section 148 of the Income Tax Act.  Learned counsel for the petitioner would argue that the institution of proceedings under Section 148 preceded by order dated 28.07.2022 passed under Section 148A(d) of the IT Act are wholly without jurisdiction and authority of law inasmuch as, the sale deed shows only 13 lakhs as the sale consideration and that was duly disclosed income. Therefore, it is contended that it is apparently not a case of any income having escaped assessment. On the other hand, learned counsel for the Revenue would submit that the issue, which has been raised by the pe....

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....tice under Section 148, writ Court should venture into the merits of the controversy when AO is yet to frame assessment/reassemment in discharge of statutory duty casted upon him under Section 147 of the Act ?" 4.1 The debate is not new. While dealing with the similar situation under the old Act i.e. Indian Income Tax Act, 1922, Division Bench of this Court in 'Lachhman Das Nayar and others vs. Hans Raj Puri, Income-Tax Officer, Amritsar and others, 1953 AIR (P&H) 55, held that - "An examination of the scheme of the Act and the words used in section 34 of the Act and the various cases that I have referred to above show that the legislature has entrusted the determination of facts and of law to the Income-tax Officers. ....

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....out a fact finding procedure, more so when the petitioners are not remediless and have got equally efficacious recourses under the Act. 30. A somewhat similar dictum is discernible from CIT v. Chhabil Dass Agarwal [2014] 1 SCC 603 as it holds that the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income-tax (Appeals). 31. Having held so, it is not expedient f....

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.... "3. In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on....