5 Bira Bai, Daughter Of Late Shri Bula Singh, Resident Of v. Income Tax Officer, Ward- Bhiwadi

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 17872/2019 Bula Singh, S/o Shri Mala Singh, H. No.72, Village Udaipur, TehsilTijara, District Alwar(since deceased-17.7.2023), through LegalHeirs:- 1/1 Gujar Singh, son of Late Shri Bula Singh, r/o H. No.72,Village Udaipur, Tehsil Tijara, District Alwar, Rajasthan 301018 1/2 Surendra Kaur, Son of Late Shri Bula Singh, resident of293, Rewari Daruhera, Haryana 1/3 Harjendra Kaur, Daughter of Late Shri Bula Singh, residentof Badarpur, South Delhi 1/4 Kartaro Bai Daughter of Late Shri Bula Singh, resident ofVillage Bubkahera Tehsil Tijara, District Alwar 1/5 Bira Bai, daughter of Late Shri Bula Singh, resident of 95,Khanda Singh ki Dhani, Bubkahera Tehsil Tijara, District Alwar1/6 Jito Bai, W/o Late Shri Bula Singh, resident of H.No.72,Village Udaipur, Tehsil Tijara, District Alwar, Rajasthan 301018 ----Petitioner Versus 1. Income Tax Officer, Ward- Bhiwadi 2. Principal Commissioner Of Income Tax, Alwar 3. Joint Commissioner Of Income Tax, Range-II, Alwar ----Respondents For Petitioner(s) : Mr. Anant Kasliwal, Sr. Adv. withMs. Charu Pareek For Respondent(s): Mr. Anuroop Singhi with Mr. N.S. Bhati &Mr. Aditya Khandelwal HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MRS. JUSTICE SHUBHA MEHTA Order 16/05/2024 1.The matter comes upon application(2/2024) for taking legal heirs of the petitioner on record. 2.For the grounds mentioned in the application(2/2024), thesame is allowed. 3.Amended cause title has already been filed and the same istaken on record. 4.With the consent of parties, the matter is taken up for finalhearing today. 5.Petitioner has preferred this civil writ petition inter-aliaclaiming the following reliefs:- “(a) the notice under Section 148 dated22.03.2019(Annexure-6), the Notice underSection 142(1) dated 19.08.2019(Annexure-9) bedeclared as being illegal, null and void and void-ab-initio and per se arbitrary; (b) order dated 26/09/2019 passed byrespondent No.1 for disposing off the objectionsfiled by the petitioner against notice underSection 148 be quashed and set aside; (c) the respondents be restrained fromcarrying out any further proceedings inconsequence of the Notice under Section148(Annexure-6), during the pendency of thiswrit petition; (d) costs of the Writ Petition may kindly beawarded in favour of the petitioner.” 6.It is contended by counsel for the petitioner that petitioner isan agriculturist who had filed his return and the return wasaccepted, thereafter, a notice was issued to him wherein it wasmentioned that sale deed was pertaining to a capital asset andthat the petitioner has not paid capital gain tax. A notice wasissued to submit the reply. It is also contended that since theassessment was done, there was no reason for issuing a freshnotice. It is further contended that no notice under Section 133(6)of Income Tax Act(hereinafter referred as ‘Act’) was received bythe petitioner and that the proceedings are barred by law. (d) costs of the Writ Petition may kindly beawarded in favour of the petitioner.” 6.It is contended by counsel for the petitioner that petitioner isan agriculturist who had filed his return and the return wasaccepted, thereafter, a notice was issued to him wherein it wasmentioned that sale deed was pertaining to a capital asset andthat the petitioner has not paid capital gain tax. A notice wasissued to submit the reply. It is also contended that since theassessment was done, there was no reason for issuing a freshnotice. It is further contended that no notice under Section 133(6)of Income Tax Act(hereinafter referred as ‘Act’) was received bythe petitioner and that the proceedings are barred by law. 7.Mr. Anuroop Singhi appearing for respondents contends thatDepartment had reasons to believe that some income has escapedassessment and thereafter, a notice was given under Section133(6) of the Act to the petitioner and reply to the said notice wasnot submitted by him. Thereafter, a notice was issued underSection 148 of the Act to the petitioner, in reply to which,objections were filed by the petitioner. It is also contended thatpetitioner did not raise any objection with regard to issuance ofnotice under Section 133(6) of the Act and no objection wasraised with regard to proceedings being barred by limitation. It isfurther contended that thereafter, the objections raised by theassessee against the issuance of notice under Section 148 of theAct were dealt by the Department and the same were disposed ofon 26.09.2019. It is contended that the land which was sold bythe petitioner was capital asset as it was within three Kms of theradius of Village Udaipur, Tehsil Tijara (Alwar). 8.Counsel for the respondent has placed reliance uponAssistant Commissioner of Income Tax vs Rajesh Jhaveri StockBrokers Pvt. Ltd.; AIR 2007 Supreme Court 2163, the relevantpart of which reads as under:- “16. Section 147 authorises and permits theAssessing Officer to assess or reassess incomechargeable to tax if he has reason to believe thatincome for any assessment year has escapedassessment. The word reason in the phrase reason tobelieve would mean cause or justification. If theAssessing Officer has cause or justification to knowor suppose that income had escaped assessment, itcan be said to have reason to believe that an incomehad escaped assessment. The expression cannot beread to mean that the Assessing Officer should havefinally ascertained the fact by legal evidence orconclusion. The function of the Assessing Officer is to “16. Section 147 authorises and permits theAssessing Officer to assess or reassess incomechargeable to tax if he has reason to believe thatincome for any assessment year has escapedassessment. The word reason in the phrase reason tobelieve would mean cause or justification. If theAssessing Officer has cause or justification to knowor suppose that income had escaped assessment, itcan be said to have reason to believe that an incomehad escaped assessment. The expression cannot beread to mean that the Assessing Officer should havefinally ascertained the fact by legal evidence orconclusion. The function of the Assessing Officer is to administer the statute with solicitude for the publicexchequer with an inbuilt idea of fairness totaxpayers. As observed by the Delhi High Court inCentral Provinces Manganese Ore Co. Ltd. v. ITO1991 (191) ITR 662], for initiation of action undersection 147(a) (as the provision stood at the relevanttime) fulfillment of the two requisite conditions inthat regard is essential. At that stage, the finaloutcome of the proceeding is not relevant. In otherwords, at the initiation stage, what is required isreason to believe, but not the established fact ofescapement of income. At the stage of issue ofnotice, the only question is whether there wasrelevant material on which a reasonable person couldhave formed a requisite belief. Whether the materialswould conclusively prove the escapement is not theconcern at that stage. This is so because theformation of belief by the Assessing Officer is withinthe realm of subjective satisfaction (see ITO v.Selected Dalurband Coal Co. Ltd..[1996 (217) ITR597 (SC)] Raymond Woollen Mills Ltd. v. ITO [ 1999(236) ITR 34 (SC)].18.So long as the ingredients of section 147 arefulfilled, the Assessing Officer is free to initiateproceeding under section 147 and failure to takesteps under section 143(3) will not render theAssessing Officer powerless to initiate reassessmentproceedings even when intimation under section143(1) had been issued.” 9.Reliance has been placed upon GKN Driveshafts(India) Ltd.Vs Income Tax Officer and Ors.; 2003(1) SCC 72. 10.We have considered the contentions.11.It is true that petitioner has filed his income tax return. Theonly dispute is that as to whether property is an agricultural landor a capital asset. If the property is treated as agricultural land,the petitioner would not be liable to pay tax on capital gain,however, if the property is a capital asset, capital gain tax ispayable. A notice was issued under Section 133(6) of the Act tothe petitioner, to which no reply was given by him. Thereafter, onissuance of notice under Section 148 of the Act, petitioner has furnished an objection, which was properly dealt with by theOfficer. 12.In view of the fact that the Department has reasons tobelieve that income has escaped assessment and has proceeded inaccordance with law and a notice was issued under Section 133(6)of the Act, thereafter, notice was issued under Section 148 of theAct, we do not find any error in the impugned order vide whichobjections raised by the assessee against the issuance of noticeunder Section 148 of the Act was disposed of and there is no errorin issuance of notice under Section 148 of the Act. Consequently,we do not find any force in the present writ petition and the sameis accordingly, dismissed. 13.Pending applications, if any, stands disposed. 14.However, petitioner can raise all objections before theAssessing Authority and the observations made herein would notcome in way of petitioner. (SHUBHA MEHTA),J (PANKAJ BHANDARI),J HEENA/31