TaxTMI 
TaxTMI 
2023 (8) TMI 683
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....the reply submitted by the petitioner/assesseee, the impugned order/notice have been issued/passed. (iii) The notice u/S 148 is untainable on the anvil of statutory bar u/S 149(b) and also because of absence of books of accounts/documents/evidence revealing a case of escaped assessment. 3. Learned counsel for petitioner has relied upon the Coordinate Bench decision of this Court in The Principal Commissioner of Income Tax -I Vs. Shri Pukhraj Soni rendered on 06.02.2019 and the decision of the Apex Court in Red Chilli International Sales Vs. Income Tax Officer and another, 2023 SCC OnLine SC 237. 4. It is not disputed by petitioner that opportunity of being heard as contemplated by Section 148 A (b) & (c) was afforded by way of issuance of notice by the Revenue and obtaining reply of petitioner/assessee. However, the grievance is that information/evidence categorized as foundational material is not sufficient to suggest that any income chargeable to tax has escaped assessment with regard to the assessment year 2016-17. Thus the very nature and character of this information/evidence is questioned by petitioner/assessee. 4.1 The decision of the Co-ordinate Bench in the Principa....
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....le setting aside the judgment of Punjab & Haryana High Court in Red Chilli International Sales (supra) found that the High Court has not dealt with the provisions of new taxing regime introduced by Finance Act, 2021 and thus held that matter deserves a deeper probe. The Apex Court as such held that the Punjab & Haryana High Court ought not to have dismissed the petition merely on the ground of non-availing of alternative remedy but should have gone into the tenability of order u/S.148A(d) within the jurisdictional contours of Article 226/227 of Constitution. 5.1. From the aforesaid, it is evident as day light that the present petition which is also against the order u/S 148A(d) and the consequential notice u/S 148 of IT Act needs to be considered on the anvil of the grounds raised in this petition and also on the anvil of foundational prerequisites u/S 148A justifying issuance of an order u/S 148A (d) followed by notice u/S 148. 5.2 Section 148A was inserted in the IT Act by Finance Act, 2021 dated 01.04.2021, primarily to give effect to the ratio laid down by Apex Court in GKN Driveshafts (India) Ltd. Vs. Income Tax Officer and others, 2003 (1) SCC 72 which inter alia held thus: ....
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.... of the Assessing Officer as regards factum of certain income having escaped assessment and his intention to re-open assessment of such income. This is possible only when the show-cause notice contains enough information to disclose the intention of the Assessing Officer so as to afford reasonable opportunity to assessee to respond. The contents of the show-cause notice thus should be precise and concise satisfying the concept of reasonable opportunity. 6.3. This Court hastens to add at this juncture that this inquiry as explained above cannot be a detailed one where assessee is given opportunity of adducing evidence in support of his defence/response. However, this inquiry includes within its ambit, the obligation of the Assessing Officer to supply reasons which are suggestive of a prima facie case revealing income chargeable to tax having escaped assessment. 6.4 Pertinently, the statute [See 148A(b)] does not oblige the Assessing Officer to supply the relevant material/evidence which are the foundation for the Assessing Officer to come to the prima facie view that income chargeable to tax has escaped assessment. This is because neither in the judgment of the Apex Court in the c....
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....) Mumbai Vs. Dilip Kumar Company and others, 2018 (9) SCC 1 Para 24 and 25, Checkmate Services Pvt. Ltd. Vs. Commissioner Income Tax, 2023 (6) SCC 451 Para 55 and 56]. 8.1 Applying this principle of interpretation of taxing statute, it is obvious from reading of Section 148A that it does not expressly provide for supply of any material/evidence in support of the show-cause notice u/S 148A(b). Thus this Court has no hesitation to hold that statutory provision u/S 148A does not obligate the Assessing Officer to supply any material/evidence, provided the show-cause notice contains reasons disclosing the mind of the Assessing Officer of nursing the prima facie view suggestive of a case where income chargeable to tax has escaped assessment. 8.2 This Court would be failing in its duty by not dealing with the aspect that the concept of reasonable opportunity which can reasonably be implied from textual interpretation of Section 148A(b) of IT Act (of supply of adverse material) is available to the assessee/petitioner or not. It needs to be tested on the anvil of the trite law that taxing statute is to be strictly construed solely on the plain language employed. 8.3 No doubt, the concept....
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.... a precise but concise elaboration in the show-cause notice of the foundantional material behind the opinion, then the show-cause notice can sustain judicial scrutiny even if the fundantional evidence/material (oral/documentary) is not supplied to the assessee. 9.1 The reason for taking the aforesaid view is not far to see. 9.2 The insertion of Section 148A w.e.f. 01.04.2021 in the Income Tax Act is to ensure that the power u/S 148 is not exercised as a matter of course or without application of mind. Thus, the inquiry contemplated by Section 148A(b) is not a detailed or full-scale one, but is merely meant to offer reasonable opportunity of being heard to the assessee to avoid casual re- opening assessment u/S 148. 9.3 It may not be out of place to mention that the show-cause notice u/S 148A(b) ought to be pregnant with concise and precise information revealing the information about foundational material which persuaded the Assessing Officer to come to a tentative finding that certain income has escaped assessment. 9.4 In the conspectus of aforesaid discussions, it is obvious that petitioner/assessee is not entitled to the material/evidence (oral/documentary) which are the foun....