TaxTMI 
TaxTMI 
2024 (2) TMI 546
X X X X Extracts X X X X
X X X X Extracts X X X X
....(1) annexed hereto at Annexure-2 and Notice under Section 148A(b) of the Act dated 21.03.2023 bearing DIN ITBA/AST/F/148A (SCN)/2022-23/1051031490(1) annexed hereto at Annexure-3, respectively for being beyond jurisdiction. (iii) For issuance of an appropriate writ, order or direction for quashing and setting aside the Order passed by Respondent No. 2 purportedly under Section 148A(d) dated 30.03.2023 bearing DIN ITBA/AST/F/148A/2022-23/1051688162(1) annexed hereto at Annexure-6 and Notice dated 31.03.2023 bearing DIN ITBA / AST / S / 148_1/2022-23/1051720987(1) issued under Section 148 of the Income Tax Act, 1961, annexed hereto at Annexure-7. 2. The brief facts of the case as disclosed in the instant writ application is that the Petitioner is an individual registered with the Income Tax Department vide PAN-BXSPB4753K. Although the Petitioner has got itself registered with the Income Tax Department, but has never filed Returns of Income, since the total income of the Petitioner has never exceeded the threshold limit as prescribed under law. On 30.01.2016 M/s. Santosh Enterprises approached the Petitioner and his brother namely Deepak Bej for purchase of a property jointly owned....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dent has accepted that the reply filed by the Petitioner has not been considered during the proceeding under Section 148A of the Act. It has been further contended that the Petitioner can now make a categorical reply during the assessment proceedings and the same shall be considered by the Assessing Officer. Moreover, Partition deed has not been made available to prove equal share between the Petitioner and his brother, Deepak Bej. It has been further, accepted that the contention of the Petitioner is right and after looking into the entire dispute and documents as appended to the writ petition, it is admitted by the Answering Deponent that only one half of the consideration is chargeable to tax in the instant case viz., 32,68,000/- which is less than the monetary limit of Rs, 50,00,000/- as prescribed in Section 149(1)(b) of the Act and the said fact was not available by the Assessing Officer. For brevity, relevant portion of Para-13 & 13(W) is extracted herein below: " 13..........the petitioner had e-filed a reply on 28.03.2023, the reply could not be transmitted till passing of the order. It appears that the reply might not have been transmitted due to technical problem. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ersons, but the share of each person in income of the property shall be included in his total income. Since accepted the contention of the Petitioner that the consideration chargeable to tax in the instant case is Rs. 32,68,000/- which is less than the monetary limit of Rs, 50,00,000/- as prescribed in Section 149(1)(b) of the Act, hence, in light of such admission, it can be construed that the assessment proceeding initiated by the Department is barred by limitation, as also, is beyond jurisdiction. 6. In crux the submission made by the learned counsel for the petitioner can be summarized as under:- (a) The action of the assessing authority of not considering the reply-cum-objection filed by the petitioner is in sheer violation of principles of natural justice and rule of fairness and the revenue ought to have disposed of the objection raised by the petitioner in the light given by the judgment rendered by the Hon'ble Apex Court in the case of GKN Driveshafts (India) Limited Vs. ITO. (b) The action of the Respondents of initiating and concluding the enquiry proceedings under Section 148A is beyond jurisdiction and time barred in terms of Section 149 of the Income Tax Act, 196....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Income Tax Act, 1961. Therefore on 29.03.2023, a draft order under section 148A (d) of the Act was submitted to the specified authority seeking his approval for passing order under section 148A (d) of the Act and for issuance of notice under section 148 of the Act. Further the approval was granted on 30.03.2023 following which an order under section 148A (d) of the Act was passed and notice under section 148 of the Act was issued. However, the counsel for the Revenue could not dispute the fact that the petitioner had e-filed a reply on 28.03.2023, but their contention is that the reply could not be transmitted till passing of the order. Learned counsel accepted that the reply might not have been transmitted due to technical problem. Therefore, his reply could not be considered during the proceeding under section 148A of the Act. 8. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, it appears that mainly two issues are involved in this case. So far as first issue is concerned; in terms of Section 148A(c) of the Income Tax Act, 1961, the Assessing Officer is mandatorily requir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ier provision required the Assessing Officer to have reason to believe that there is escapement of income, the new provision required any information as specified under Explanation 1 to Section 148 to be present for there to be a reopening of the case. Furthermore, Section 148A which was inserted by the Finance Act, 2021 reiterates the procedure to be followed by the Assessment Officer upon receiving such information, including conducting any inquiry regarding the information received, providing an opportunity of being heard to the Assessee through serving of notice to show cause within the prescribed time in the notice (which must not be less than 7 days and not more than 30 days on the date of serving the notice or the time period till which time extension was received by the Assessee), considering the reply given by the assessee and deciding on the basis of the material that is present, including the reply, about whether the case is fit for passing a notice under Section 148 through passing an order within 1 month from the reply. 10. So far as second issue is concerned; apart from the codification of Sections 148 and 148A, Section 149 was further modified by the Finance Act, 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shall not in respect of such property be assessed as an association of persons, but the share of each such person in the income from the property as computed in accordance with sections 22 to 25 shall be included in his total income. Explanation.- For the purposes of this section, in applying the provisions of sub-section (2) of section 23 for computing the share of each person as is referred to in this section, such share shall be computed, as if each such person is individually entitled to the relief provided in that sub-section." 12. Before parting, it is necessary to observe that in the instant case the deed (Annexure-1) would transpire that the Petitioner and his brother upon demise of their father became joint owners of the property under consideration with respective share of 50% each and both being joint vendors in the said transaction are entitled to equal share of the consideration amount, viz., 32,68,000/- each; since the income escaping assessment is less than 50 lakhs, Section 149(1)(b) of the Act could not have been invoked. Accordingly, one of the contentions of the Revenue that the petitioner can very well explain the facts in the Assessment proceedings and the ....