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January 13, 2023

The HC overturns a non-speaking order against two PAN numbers.

by CA Shivam Jaiswal in Income Tax

The HC overturns a non-speaking order against two PAN numbers.

Fact and issue of the case.

1. This intra-Court appeal by the writ petitioners is directed against the order dated 28th November, 2022 in W.P.A. 19557 of 2022. By the said order, the writ petition stood disposed of by directing the appellants to file a representation before the assessing officer and explaining as to why two PAN numbers were obtained by the appellants / assessee. Till the disposal of the representation, the learned Single Bench has directed an order of status quo to be passed pursuant to the order passed under Section 148A(d) of the Income Tax Act, 1961 (for short, “the Act”) dated 30th April, 2022. Aggrieved by such order, the appellants / writ petitioners have filed the present appeal.

2. We have heard Sanjay Bhowmik, learned Advocate appearing for the appellants and Mr. Om Narayan Rai, learned senior standing counsel for the respondents/revenue.

3. Though we fully agree with the substantial part of the direction issued by the learned Judge directing the appellants to go before the assessing officer and make a representation, the assessing officer will be precluded from considering the representation since already he has passed an order under Section 148A(d) of the Act dated 13th April, 2022. Therefore, unless and until such order is set aside and the assessing officer is empowered to consider the matter afresh, the direction issued in the writ petition cannot be implemented.

Observation by the Tribunal

1. We have perused the order dated 13th April, 2022 passed under Section 148A(d) of the Act and we find that the order to be a non-speaking order. The appellants had submitted a reply dated 28th March, 2022 to the notice issued under Section 148A (b) of the Act. In the said reply, the assessee has pointed out as to how and under what circumstances two PAN numbers were applied and the fact that one of the PAN numbers was surrendered, was also set out. The assessing officer should examine the correctness of the stand taken by the appellants, which according to the appellants, was an inadvertent mistake. As we are satisfied that the order dated 13th April, 2022 is a non-speaking order, we are inclined to interfere with the same and remand the matter back to the assessing officer for fresh consideration and preserving the direction issued by the learned Single Bench directing the appellants to submit a representation.

2. In the result, the appeal along with the connected application are disposed of by setting aside the order dated 13th April, 2022 passed under Section 148A(d) of the Act and the matter stands remanded and restored to the file of the assessing The appellants are directed to submit a representation as directed by the learned Single Bench and the assessing officer on receipt of the representation shall afford an opportunity of personal hearing and consider the reply dated 28th March, 2022 as well as the representation and pass a fresh order on merits and in accordance with law.

3. Needless to state that the consequential notice issued under Section 148 of the Act is also set aside.

4. There shall be no order as to costs. 8. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.

Conclusion

The tribunal has ruled in favour of the assessee and dismiss the appeal

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