Abhijeet Anilkumar Gaikwad … v. Assistant Commissioner Of Income Tax-Circle 1 And Ors. …

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 6410 OF 2022WITH WRIT PETITION NO. 3410 OF 2022WITHWRIT PETITION NO. 6411 OF 2022WITHWRIT PETITION NO. 3428 OF 2022 Abhijeet Anilkumar Gaikwad ….. Petitioner Vs.Assistant Commissioner of Income Tax-Circle 1 and ors.….. Respondents Mr.Dharan Gandhi, for Petitioner.Mr. Ajeet Manwani a/w Ms. Samiksha Kanani, for Respondents. CORAM:K.R.SHRIRAM, J &FIRDOSH P. POONIWALLA, J.DATED :JUNE 20, 2023 P.C. WRIT PETITION NO. 6410 OF 2022 1.The petitioner is aggrieved by notice dated 31/03/2021issued under Section 148 of the Income Tax Act, 1961 (‘the Act’)and the order dated 22/02/2022 rejecting petitioner’s objections. 2.Though various grounds have been raised, two groundsthat Mr. Gandhi highlighted at the outset are: (a) no personalhearing was granted before the impugned order dated22/02/2022 was passed and (b) there has been non-applicationof mind while passing the order dated 22/02/2022. Mr. Gandhi ofcourse also adds that the application for sanction and theapproval under Section 151 of the Act has been made available despite called for only in the affidavit-in-reply. 3.The fact that no personal hearing was given is not disputed.4.On the ground of non-application of mind, it was submitted,as averred in the petition, that respondent no.4 has passed theimpugned order in a mechanical way without considering thecontentions raised by petitioner, without conducting any furtherenquiry and by stating incorrect facts. 5.Mr. Gandhi submitted that in paragraph 4 of the impugnedorder, it has been stated “From the perusal of ITR, it is notestablished that the gross receipts of the assessee are in Cash”,but this allegation has not been raised in the reasons recordedfor reopening. Mr. Gandhi also submitted that in the sameparagraph 4 of the impugned order, it is stated “Hence, thesource of cash deposits amounting to Rs.85,94,597/- andRs.6,00,000/- against insurance premium to HDFC Life InsuranceCompany through demand draft cannot be presumed to includethe amount of gross receipts of the assessee.” This finding isincorrect inasmuch as the reasons recorded itself indicate thatcash deposit in the account is only Rs.3,94,600/- and non-cash isRs.81,99,997/-. Mr. Gandhi further submitted that in paragraphs5 and 6 of the impugned order also there are incorrect findings.These allegations which are made in ground (J) to the petition have not been denied by respondents. In the affidavit-in-replyfiled through Abdhesh Kumar Jha affirmed on 13/04/2022,respondents state “it is respectfully submitted that thecontentions of the assessee in this ground are pertaining toNational E-Assessment Centre, Delhi i.e. Respondent No. 4.Hence, no comments are being offered.” 6.Therefore, on this ground alone, the impugned order dated22/02/2022 is required to be quashed and set aside, which wehereby do. 7.At the same time, without making any observations onmerits of the matter and keeping open all rights and contentionsof petitioner, the matter be remanded to the JurisdictionalAssessing Officer (JAO) who shall dispose petitioner’s objectionswithin 4 weeks of receiving supplementary objections frompetitioner, which Mr. Gandhi undertakes will be filed within 2weeks from today. 8.The order to be passed shall be a reasoned order dealingwith every objection of petitioner and before passing any suchorder, a personal hearing shall be granted to petitioner, noticewhereof shall be communicated atleast 5 working days inadvance. 9.If JAO is going to rely on any judgment, a list thereof shall be provided to petitioner along with the notice for personalhearing so that petitioner will be able to deal with/distinguishthe same during the personal hearing. 8.The order to be passed shall be a reasoned order dealingwith every objection of petitioner and before passing any suchorder, a personal hearing shall be granted to petitioner, noticewhereof shall be communicated atleast 5 working days inadvance. 9.If JAO is going to rely on any judgment, a list thereof shall be provided to petitioner along with the notice for personalhearing so that petitioner will be able to deal with/distinguishthe same during the personal hearing. 10.If petitioner wishes to file written submissions stating whattranspired during the personal hearing, the same to be filedwithin 3 days from the personal hearing. 11.Petition disposed. 12.Petitioner’s statement that petitioner shall co-operate andwill not seek any adjournment unless the notice is not given inaccordance with our directions above is accepted. WRIT PETITION NO. 3410 OF 2022WITHWRIT PETITION NO. 6411 OF 2022WITHWRIT PETITION NO. 3428 OF 2022 13.Mr. Gandhi states that identical grounds in Writ Petition No.6410 of 2022 have been raised in these three petitions as wellwhich Mr. Manwani does not dispute. 14.Therefore, the impugned orders in these three petitions,being order dated 22/02/2022, are quashed and set aside. 15.The directions given above in paragraphs 7 to 10 shall alsoapply to these petitions. (FIRDOSH P. POONIWALLA, J) (K.R.SHRIRAM, J)