TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 722
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.... assessment year 2017-18, it filed its return of income on 29.09.2017, where its total income was declared as NIL. On 27.02.2024, the Petitioner received the first notice under section 148A(b) of the Act from the office of the ACIT, Circle 1(1), Raipur. This notice stated that there was information that suggests that income chargeable to tax for the Assessment Year 2017-18 has escaped assessment. It also stated that the details of the information/enquiry conducted on which reliance was placed, along with supporting documents were enclosed with said notice. 3. Mr. Neelabh Dubey learned counsel for the petitioner would submit that against the order passed by respondent No.1 under Section 148A (d) and notice issued under Section 148 of the Income Tax Act, there is no provision for appeal or revision and duty is cast upon the authority passing the order to consider all the relevant and defence taken by the petitioner. He would submit that first notice under section 148A(b) of the Act from the office of the ACIT, Circle 1(1), Raipur, alleged that the Petitioner had taken a loan of Rs. 55,17,977/- from a shell company namely Jajodia Finance Limited. It also alleged that there were fin....
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....here are many glaring differences and errors in the sanction and the order. The order is without any application of mind as the AO failed to consider the response of the Petitioner which clearly shows that the purchase of rice husk was not bogus, the loan obtained from Jajodia, a genuine concern, was properly obtained and repaid in 2020-21 and did not receive any money from Suresh Agrawal or his shell companies. He has placed reliance on the judgments passed by the Hon'ble Supreme Court in the matters of Calcutta Discount Co. Ltd. v. Income-tax Officer AIR 1961 SC 372, Commissioner of Income Tax, Gujrat v. A. Raman & Company Civil Appeal No. 768 of 1996, Sales Tax Officer, Ganjam and Another v. Uttareswari Rice Mills 1972 sales Tax Cases (SC) 567, Sheo Nath Singh v. Appellate Assistant Commissioner of Income Tax (Central), Calcutta and other 1971 ITR 147 (SC), Income Tax Officer, I Ward, Distt. VI Calcutta and others v. Lakhmani Mewal Das 1976 ITR437 (SC), The Parashuram Pottery Works Co. Ltd. vs. The Income Tax Officer, Circle-1 Ward 'A' Rajkot, Gujarat 1977(1) SCC 408, GKN driveshafts (India) Ltd. v. Income Tax Officer and others (2003) 1 SCC 72, Commissioner of Income Tax, delhi....
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.... authorities had gone through the proposal and its relevant documents and only after satisfying with the facts, they give the approval. He has objected the contention of the petitioner and has submitted that the AO had applied his mind as all the documents, data, facts, replies etc. were duly considered before passing the order u/s 148(A)(d) of the Act. The order U/s 148A(d) is a system generated and it is generated only after the approval is granted U/s 151 of the Act. He has placed reliance on the judgments passed by the Hon'ble Supreme Court as well as various High Courts in the matters of Anshul Jain v. Principal Commissioner of Income Tax, (2022) 143 taxmann.com 38 SC & (2022) 143 taxman.com 37 (Punjab and Haryana), Deepak Kumar Yadav v. Principal Commissioner of Income Tax (2023) 151 taxmann.com 376 (Allahabad), Amrit Homes Pvt. Ltd. v. Deputy Commissioner of Income Tax (2023) 154 taxmann.com 289 (Madhya Pradesh), Kailash Kedia v. Income Tax officer, (2023) 147 taxman.com 126 (Orissa), Sidhbali Kripa Enterprises v. Income Tax Officer (2023) 156 taxmann.com 187 (Allahabad), Mohd. Sajid Bains v. Income tax officer (2024) 159 taxmann.com 599 (Rajasthan), Sanjay Ratra v. Assistan....
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.... (c) is received by him, or where no such reply is furnished, within one month from the end of the month in which time or extended time allowed to furnish a reply as per clause (b) expires: Provided that the provisions of this section shall not apply in a case where- (a) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A in the case of the assessee on or after the 1st day of April 2021; or Advertisement (b) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any money, bullion, jewellery or other valuable article or thing, seized in a search under section 132 or requisitioned under section 132A, in the case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (c) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any books of account or documents, seized in a search under section 132 or requisitioned under section 132A, in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any in....
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....n as per this section, the time or extended time allowed to the assessee, as per show cause notice issued under clause (b) of section 148A or the period during which the proceeding under section 148A is stayed by an order or injunction of any court, shall be excluded: Provided also that where immediately after the exclusion of the period referred to in the immediately preceding proviso, the period of limitation available to the Assessing Officer for passing an order under clause (d) of section 148A is less than seven days, such remaining period shall be extended to seven days and the period of limitation under this subsection shall be deemed to be extended accordingly. Explanation: For the purposes of clause (b) of this sub-section, "asset" shall include immovable property, being land or building or both, shares and securities, loans and advances, deposits in bank account. Section (2): The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151". 9. From the aforesaid provisions of the Act, 1961 it is quite vivid that the object of issuing notice under Section 148 A of the Act is limited to the ascertainment of ....
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....the decision rendered in Calcutta Discount Co. Ltd. (supra) is distinguishable on the basis of background facts being different in the matter. 13. As regards the decision of the Hon'ble Supreme Court in Red Chilli International Sales (supra), it is seen that the Division Bench of the High Court of Punjab & Haryana had dismissed a similar petition u/A. 226/227 of the Constitution filed by petitioner/assessee therein by refusing to interfere in the order passed u/S 148A(d) on the ground that since proceedings are yet to be concluded, interference ought to be avoided at a premature stage, especially in the absence of any jurisdictional error and in the face of alternative statutory remedy of rectification of error. Pertinently, the decision of the Punjab & Haryana High Court in the case of Red Chilli International Sales (supra) was assailed before the Apex Court which passed the following order : "1. Delay condoned. 2. We with the petitioner that the impugned judgment rejecting the writ petition on the ground of alternative remedy does not take into consideration several judgments of this Court, on the jurisdiction of the High Court, as writ petitions have been en....
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....gment, it has held that:- 8. Thus, the consistent view is that where the proceedings have not even been concluded by the statutory authority, the writ Court should not interfere at such a pre-mature stage. Moreover it is not a case where from bare reading of notice it can be axiomatically held that the authority has clutched upon the jurisdiction not vested in it. The correctness of order under section 148A(d) is being challenged on the factual premise contending that jurisdiction though vested has been wrongly exercised. By now it is well settled that there is vexed distinction between jurisdictional error and error of law/fact within jurisdiction. For rectification of errors statutory remedy has been provided. 9. In the light of aforesaid settled proposition of law, we find that there is no reason to warrant interference by this Court in exercise of the jurisdiction under Article 226/227 of the Constitution of India at this intermediate stage when the proceedings initiated are yet to be concluded by a statutory authority. Hence the writ petition stands dismissed. Anshul Jain v. Principal Commissioner of Income-tax [2022] 143 taxmann.com 38 (SC), the SLP....
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....language employed. 9.2 The insertion of section 148A w.e.f. 1-4-2021 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 reopening 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. 11. Pertinently, the question of going into the veracity and genuineness of material/evidence forming the opinion of the Assessing Officer suggesting that income of petitioner/assessee has escaped assessment ought not to be gone into while exercising writ jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution. Thus, the ground of reliability and tenability of the evidence/material is not considered herein. ....
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....e introduced vide Finance Act, 2021 provides for an opportunity to the assessee before issuance of notice under section 148 of the Act of 1961. After such notice to the assessee and consideration of reply of assessee in response to the notice the assessing authority has to decide on the basis of material available on record by passing an order under section 148A(d) whether a notice under section 148 is fit to be issued in the case. The consideration at the stage of passing order under section 148A(d) is thus limited to ascertainment of information with the Assessing Officer that income of assessee has escaped assessment to tax. Final determination on the question whether income of assessee has actually escaped assessment is then to be made after notice under section 148, by passing an order of assessment or reassessment under section 147, subject to the provisions of section 148 to 153 of the Act of 1961. 12. The Act of 1961 does not contemplate any detailed adjudication on the merits of information available with the Assessing Officer at the stage of passing order under section 148A(d) of the Act of 1961. In our considered view there is a specific purpose for not introduc....