Notice issued under Section 148 by HC was set aside since it lacked any fresh concrete information
Fact and issue of the case
The Petitioner in the present petition inter alia seeks the issuance of writ of certiorari for quashing the impugned notice issued under Section 148 of the Income Tax Act, 1961 (“the Act”) dated 31st March, 2021, the order of assessment dated 28th March, 2022 passed under Section 147 r/w Section 144B of the Act as also the show cause notice for penalty issued under Section 271D of the Act dated 30th July, 2022 on the ground that the order in show cause notices impugned have been issued contrary to the procedure prescribed under the Act as also the letter and spirit of the judgment in the case of GKN Driveshafts (India) Ltd. V/s. Income Tax Officer and Others1.
Briefly stated the material facts are as under:
The Petitioner who is an individual claims that he was a salaried employee with M/s. Jaya Travels &’ Tours which was a partnership firm duly registered under the Indian Partnership Act, 1932. A return of income was filed by the Petitioner for the assessment year 2015-16 declaring a total income of Rs.6,26,910/-. The said return was processed under Section 143(1) of the Act and an intimation was issued in regard to the same to the Petitioner.
A notice under Section 148 of the Act dated 31st March, 2021 was issued by the Respondents seeking to reopen the assessment for the assessment year 2015-16 on the ground that income had escaped assessment within the meaning of Section 147 of the Act. The Petitioner was directed to file a return in the prescribed form for the said assessment year within thirty days from the service of the said notice. The Petitioner states that in response to the said notice under Section 148 of the Act, the return of income was filed once again. The Petitioner also sought from Respondent No. 2, the reasons for reopening the said assessment.
In response to the said request of the Petitioner, it is stated that a notice dated 30th June 2021 was received by the Petitioner under Section 143(2) r/w Section 147 of the Act from Respondent No. 2 asking the Petitioner to furnish documents in support of his submission.
In the said notice, the A.O. in paragraph 2 recorded as under:
“……. Issues as per reasons recorded for reopeningnull”
The Petitioner claims that no response was flled to the notice dated 30th June, 2021. Thereafter, a further notice under Section 142(1) of the Act was issued on 02nd December, 2021 asking the Petitioner to furnish further information. The information sought was also in regard to the alleged receipt of Rs.85 lakhs from M/s. Evergreen Enterprises during the flnancial year 2014-15.
The Petitioner claims that a response was flled to the said notice wherein the Petitioner denied having received any loan or advance from M/s. Evergreen Enterprises and sought from Respondent No. 3, information regarding the aforementioned loan. It is stated that Respondent No. 3 without furnishing any material or information regarding the aforesaid loan proceeded to pass the order under Section 147 r/w Section 144B of the Act.
Observation of the court
The contention of learned Counsel for the revenue is that the extra ordinary writ jurisdiction need not be exercised by this Court, in the facts and circumstances of the present case, as there was an equally efficacious alternate remedy available to the Petitioner under the Act. The other contention of Mr. Kumar, learned Counsel for the revenue is that this Court ought not to exercise its extra ordinary writ jurisdiction, reliance was placed upon CIT &° others V/s. Chhabil Dass Agarwal . While it is true that High Court would not entertain a petition under Article 226 of the Constitution of India if an effective alternate remedy is available to an aggrieved person yet the said principle of alternate remedy has been held to be a matter of self imposed convenience and not as a matter of rule. The exceptions to the rule of alternate remedy where a writ Court may exercise its jurisdiction under Article 226 of the Constitution of India, are cases where statutory authority has not acted in accordance with the provisions of an enactment in question, or has acted in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in violation of the principles of natural justice. Reference in this regard can be made to CIT &° others V/s. Chhabil Dass Agarwal.
In the present case, we do not wish to relegate the Petitioner to the alternate remedy as provided under the Income Tax Act for the simple reason that not only had the A.O. failed to satisfy the jurisdictional conditions for invoking its power under Sections 147/ 148 of the Act, but had also failed to comply with the directions of the Apex Court rendered in the case of GKN Driveshafts (India) Ltd.
Be that as it may, the petition is allowed. The notice dated 31st March, 2021 issued under Section 148 of the Act, the order of assessment dated 28th March, 2022 and the consequent notice of demand dated 28th March, 2022 and the penalty notice dated 28th March, 2022, are hereby set aside.
The writ petition is disposed of accordingly. No order as to costs.
In the result, appeal of the assessee is allowed and ruled in favour of the assessee
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