TaxTMI 
TaxTMI 
2023 (10) TMI 90
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....iorari for setting aside the Notice dated 22.03.2023 having Notice No. ITBA/AST/S/148 1/2022-23/1051113394(1) issued by Respondent No. 3 under Section 148 of the Income Tax Act, 1961 for the Assessment Year 2019-20, as the same has been issued without complying with the mandatory pre-requisite conditions and in accordance with the provisions of Income Tax Act, 1961. (iii) For issuance of appropriate writ(s)/order(s)/direction(s) including a writ of certiorari for setting aside the notice dated 03.03.2023 having Notice No. 23/1050362599(1) issued by Respondent No. 3 under Section 148A(b) of the Income Tax Act, 1961 for the Assessment Year 2019-20, as the same has been passed in gross violation the provisions of the Income Tax Act, 1961. (iv) Pending final adjudication and disposal of instant writ petition, your lordships may be pleased to stay the impugned notice issued under Section 148 of the Act, 1961 dated 22.03.2023 DIN & Notice No. ITBA/AST/S/148_1/2022-23/1051113394(1) issued by Respondent No. 3. (v) For issuance of any other appropriate Writ(s), order(s), and/ or direction(s), as Your Lordships may deem fit and proper in the facts and circumstances of this case and in ....
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....spondent department conducts an enquiry, which is evident from the Impugned Order dated 22.03.2023; then, it is mandatory for the respondent department to provide the report of the enquiry. However, the respondent department has failed to provide the copy of the report of the enquiry conducted. In other words, once enquiry has been conducted, then it shall be mandatory for the respondent department to provide the report of the enquiry conducted as per the provisions of Section 148A of the Act, 1961. He further contended that though the petitioner replied to the notice dated 13.03.2023 but the reply was not taken into consideration as such since the action of the respondent in passing the impugned order is against the settled procedure and thus, the same deserves to be quashed and set aside. 4. Mr. R. N. Sahay, learned counsel for the respondents submits that the Petitioner's objections stated as above were disposed of by the Assessing Officer u/s 148A (d) of the Act dated 22.03.2023 by passing a reasoned order (Annexure-3 of the writ petition) wherein it was held by the AO that the Assessee has indulged in real estate activities and thus, it is a fit case where notice u/s 148....
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....n of Income for the A.Y 2019-20 within 30 days. Thus, the objection of the petitioner that information received from Sub-registrar, Ranchi regarding sale and purchase of property was not shared with the petitioner before the issue of notice u/s 148 of the Act is not correct. Further, section 148A(d) of the Act requires the AO to decide a case on the basis of material available on record including reply of the Assessee. As such, the AO is not required to confine himself only to the underlying information based on which the case was selected by the CBDT but can rely upon all materials available on record. The object of issuing notice under Section 148A of the Act is limited to ascertainment of information which suggests that income has escaped assessment and issues such as sufficiency or otherwise of material justifying reopening of assessment adjudication on the correctness of information are ordinarily not warranted at this stage in exercise of extraordinary writ jurisdiction. The limited enquiry contemplated at this stage is to ascertain existence of information which suggests that income has escaped assessment. The quantification of escapement of income is not needed under Sect....
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....d information relied upon by the Assessing Officer needs to be supplied to the Assessee along with the notice under Section 148A(b) of the Act. There must be some material, supporting allegation of escapement of income. A bald assertion about escapement of income is not sufficient to validate issuance of notice u/s 148A(b) of the Act. Therefore, wherever the respondent department receives information about a transaction of sale of immovable property, mere fact of sale of immovable property will not lead to inference that such transaction is of income character and that it was chargeable to tax. The respondent department is duty bound to put material after conducting enquiry into the transaction to conclude that the income has escaped assessment. The legislature has brought epochal and milestone amendment in the provisions of Section 147 to 151 of the I.T Act, 1961 vide Finance Act, 2021, notably same are based on three significant ideals, which can be enumerated herein below: (i) There is ease of doing business; (ii) There is lesser number of cases being reopened. (iii) Aiming at lesser litigation which has also been enumerated and mentioned in the explanatory memorandum to ....
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....ts did not have the required material information and supporting documents in its hand on basis of which the respondents had made its mind and decided to issue Notice u/s 148A(b) of the I.T Act, 1961. The Notice u/s 148A(b) of the I.T Act, 1961 was issued on the basis of fishing enquiry/information. The Respondents, after issuance of the Impugned Notice u/s 148A(b) of the I.T Act, 1961, had started gathering information and supporting documents; however, even after obtaining the information and supporting documents, they did not disclose such information and supporting documents with the petitioner. The Respondents were duty bound to provide all material information/enquiry conducted on which reliance is being placed along with supporting documents to the petitioner. 10. The very essence of Section 148A(b) of the I.T Act, 1961 is to provide opportunity to the petitioner. Without sharing/providing the information and supporting documents to the petitioner, the Respondents had clearly frustrated/violated the purpose of Section 148A(b) of the I.T Act, 1961 and further, restrained the petitioner to present his stand and submit his explanation in the best possible manner. Further, such....
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....goes to substantiate that the assessee has undertaken sale/purchase of immovable property. Thus, refuting the stand taken by the assessee, on the basis of information gathered during this proceeding, I am of the considered opinion that this case is a fit case for issue of notice u/s 148." Thus, it is evident that the impugned Order has been passed without providing the details uploaded on the Insight portal along with the information gathered from the investigation wing and new information uploaded on insight portal and without considering the objection raised by the petitioner in its reply dated 13.03.2023 as alleged to have been provided/considered by the respondent department. 12. At this stage, it is also necessary to mention that the respondent department has also issued a "Circular" for issuance of notice under section 148 of the Act, 1961 dated 01.08.2022. In Point No. 2.1(vii), it has been stated that if the result of enquiry/information available suggests that the income chargeable to tax has escaped assessment, the AO shall provide an opportunity of being heard to the Assessee by issuing a show cause notice under section 148A(b) of the Act. The said notice shall provide....
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.... 16. In the present case admittedly, no material had been supplied to the Petitioner, notwithstanding the fact that there was material available with the assessing officer as can be seen from the order passed by the assessing officer under section 148A(d) of the Act. 17. This was in the shape of a statement recorded, during survey action of the partner of BGR Construction LLP. There also appears to be a sale list, which was allegedly found during the search operations containing the names of 72 investors including the Petitioner which although referred to in the order under section 148A(d) of the Act as also in the clarification communication dated 21st March 2022 was not provided to the Petitioner. Interestingly, while the communication dated 21st March, 2022, did say that the list of total sale "was being attached for the ready reference of the Petitioner for purposes of submitting a reply to the show cause notice, no such list was admittedly furnished". 18. It goes without saying that providing information to the Petitioner, without furnishing the material based upon which the information is provided, would render an assessee handicapped in submitting an effective reply to th....