TaxTMI 
TaxTMI 
2025 (10) TMI 1237
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....e case are that: 4.1 The petitioner is the son of late Ms. Mrudula Gandhi. A notice dated 17.03.2023 under section 148A(b) of the Act was issued in name of late Ms. Mrudula Gandhi to explain the source of credit amounting to Rs. 1,23,70,612/- appearing in her bank accounts for the Financial Year 2018-19 relevant to Assessment Year 2019-20. 4.2 On perusal of the show-cause notice under section 148A(b) of the Act, it appears that the respondent raised the issue regarding credit in the bank account of late mother of the petitioner on the ground that the same was not fully disclosed in her return of income resulting into suppression of income. Para 4 of the notice under section 148A(b) reads as under: "In view of the facts narrated hereinabove, an opportunity of being heard is being provided to you as per requirement of section 148A(b) of the Income Tax Act, 1961. (i) The source of credits amount to Rs. 1,23,70,612/- appearing in your bank account as discussed above along with documentary evidence i.e. respective ledgers, bills, books of accounts, bank account highlighting the transactions and explain the source of said credits. (ii) Any other documenta....
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....refore, submitted that the entire notice under section 148A(b) read with order under section 148A(d) of the Act are without jurisdiction as there is no information available with the respondent to show that there is an escapement of income except the total of the credit side of the bank account which is sought to be added on the ground that the same is not explained. In support of his submissions, learned advocate Mr. Shah referred to and relied upon the decision of this Court in case of Onir Infraspact (P.) Ltd vs. Income Tax Officer reported in [2024] 168 txmann.com 21 (Gujarat) to submit that this Court, in similar facts, held that when notice under section 148A(b) of the Act is issued calling for the information from the assessee would amount to gross procedural error from very inception rendering such notice as bad in law. 6. On the other hand, learned advocate Mr. Rutvij Patel for the respondent submitted that the petitioner has failed to give explanation about the credit entries in the bank account of late mother of the petitioner for the year under consideration and no details are provided. It was further submitted that as per the affidavit-in-reply filed on behalf of th....
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.... submitted partial documentary evidences and could not explain credit entries. I submit that there is an information which suggests that income chargeable to tax has escaped assessment. I submit that the impugned notice is legal and valid. 13. With reference to para 3(2.1), it is submitted that assessee was given an opportunity vide notice u/s. 148A(b) of the Act to explain the source and nature of credit entries in the bank account. However, the assessee could only explain credit entries partially. The assessing officer after considering the information as well as the reply of assessee has passed impugned order u/s 148A(d) of the Act." 6.1 Referring to the above averments it was submitted that, no interference be made in this petition while exercising extraordinary jurisdiction as the petitioner has an alternative efficacious remedy to prefer an appeal if any addition is made in the reassessment proceedings. 7. Having heard learned advocates for the respective parties and considering the facts of the case, it would be germane to refer to the provision of section 148A of the Act which existed at the relevant point of time, reads as under: "148A:-Conducting i....
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....oks 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 information contained therein, relate to, the assessee; or (d) the Assessing Officer has received any information under the scheme notified under section 135A pertaining to income chargeable to tax escaping assessment for any assessment year in the case of the assessee. Explanation.-For the purposes of this section, specified authority means the specified authority referred to in section 151.]" 8. On perusal of the above provision, it is clear that the Assessing Officer can call for the details to verify the information in his possession as per provision of clause (a) of section 148A of the Act and on the basis of such explanation co-related with the information, the Assessing Officer can issue notice under clause (b) of section 148A of the Act so as to give an opportunity to the assessee to explain with regard to information which is disclosed in the notice to enable the Assessing Officer to come to a prima facie conclusion as to whether it is a fit case to reop....
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....he assessee to explain the same and not to call for any further information. 11. However, in the facts of the present case, it seems that the Assessing Officer has not understood the purport and the purpose of insertion of section 148A of the Act and the provision of clause (a) and clause (b) are mixed up in the notice issued under section 148A(b) of the Act resulting into such notices being bad in law from the inception. 12. This Court in case of Onir Infraspace (P.) Ltd (supra), in similar facts, has held as under: "7. Considering the submissions made by learned advocates for the respective parties and on perusal of the impugned notice issued under Section 148A(b) of the Act, it is not in dispute that the said notice is issued for calling upon the petitioner to submit various details for verification of the data which leads to the only conclusion that the notice is issued for inquiry as contemplated under Section 148A(a) of the Act. The relevant portion of the said notice is reproduced hereinbelow: "As per the above report, the assessee has introduced long term borrowings of Rs. 61,00,00,000/- just after the incorporation of the assessee company and the so....
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....he date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any, as per clause (a)." 9. On perusal of the above provisions, it appears that the Assessing Officer before issuing the notice under Section 148 of the Act has to conduct the inquiry with prior approval of the specified authority with respect to the information which suggest that the income chargeable to tax has escaped the assessment and after such inquiry, issued the notice under Section 148A(b) of the Act to provide an opportunity of being heard to the assessee by serving a show-cause notice. However, in the facts of the case, the respondent has issued the notice under clause (b) of the Section 148A of the Act as if the inquiry is to be conducted under clause (a) of Section 148A of the Act and therefore, the impugned notice cannot be commensurate the requirement of clause (b) of Section 148A of the Act as such no....
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....ny supporting document establishing the identity of the parties, genuineness of transaction and creditworthiness of the counter parties justifying the bank account transactions carried out are related to the business parties of the assessee. On perusal of the record, it appears that the petitioner - assessee has submitted all the details along with reply filed on 9th May 2023,. In such circumstances, in view of the above facts, the impugned assessment order under Section 148A(d) of the Act is not sustainable as the Assessing Officer has failed to set out any opinion on the basis of the available information and material on record to arrive at the finding that it is a fit case to reopen the assessment under Clause (b) of Section 148A of the Act. In the case on hand, we are not required to examine the correctness of the contentions qua the facts of the case as raised on behalf of the petitioner as it would be premature as the case of the petitioner is based upon the legal contentions that the notice under Section 148A(b) of the Act is in the nature of notice under Section 148A(a) of the Act and that the notice issued under Section 148A(b) is without considering the contentions raised....