Alongwith Payment Of Requisite Fee, However, Nodocuments Have Been Provided v. Assistant Commissioner Of Income Taxreported In Manu/Tn/9885/2022 And Paragraphs 2, 12

Court No. - 3 Case :- WRIT TAX No. - 197 of 2024 Petitioner :- Ravish Rastogi Respondent :- Union Of India Thru. Secy. Ministry Of Finance , New Delhi And Others Counsel for Petitioner :- Himanshu Singh,Aakash Prasad Counsel for Respondent :- A.S.G.I., Kushagra Dikshit Hon'ble Mrs. Sangeeta Chandra,J.Hon'ble Shree Prakash Singh,J. 1. Heard Shri Aakash Prasad alongwith Shri HimanshuSingh, learned counsel for the petitioner, Sri VarunPandey, learned counsel for the respondent no.1 and SriNeerav Chitravanshi, Advocate alongwith Sri KushagraDikshit, learned counsel for the opposite parties no. 2 and3. 2. This writ petition has been filed with the following main prayers:- "a. Issue a writ, order or direction in the nature of Certiorariquashing the Impugned Notice dated 27.03.2024 issued by theRespondent no.3, u/s 148A (b) of the IT Act, (Annexure No.1). b. Issue a writ, order or direction in the nature of Certiorariquashing the Impugned Order dated 20.04.2024 passed by theRespondent No.3 u/s 148A(d) of the IT Act (Annexure No.2); c. Issue a writ, or direction in the nature of Certiorari quashing theImpugned Show Cause Notice dated 20.04.2024, u/s 148A(b) ofthe IT Act, issued by the Respondent No.2 (Annexure No.3); d. Issue a writ, order or direction in the nature of Mandamusdirecting the Respondents to supply to the Petitioner certifiedcopies of the entire record of the assessment proceedings as wellas the Reassessment proceedings;" 3. It is the case of the petitioner that the petitioner and hisbrother conducted their separate businesses of trading ofjewellery under the name of M/s Sidhnath AbhushanBhandar and M/s S. R. Traders from a shop at ShivPrasad Chowk, Lucknow. They, later on, acquired anothershop at Bahoran Tola, Chowk, Lucknow for expansion oftheir respective businesses. The petitioner and his brothershifted to the new premises at Bahoran Tola, Chowk, d. Issue a writ, order or direction in the nature of Mandamusdirecting the Respondents to supply to the Petitioner certifiedcopies of the entire record of the assessment proceedings as wellas the Reassessment proceedings;" 3. It is the case of the petitioner that the petitioner and hisbrother conducted their separate businesses of trading ofjewellery under the name of M/s Sidhnath AbhushanBhandar and M/s S. R. Traders from a shop at ShivPrasad Chowk, Lucknow. They, later on, acquired anothershop at Bahoran Tola, Chowk, Lucknow for expansion oftheir respective businesses. The petitioner and his brothershifted to the new premises at Bahoran Tola, Chowk, Lucknow on 03.02.2020. The respondents initiated searchand seizure operation under Section 132 of the IncomeTax Act at the joint shop of the petitioner at Bahoran Tola,Chowk, Lucknow on 12.02.2020. During the search andseizure operations cash, gold jewellery and silverjewellery were found alongwith loose documents andsheets. The loose documents and sheets wereimpounded, but the gold and silver were considered stockin trade, and therefore, were not seized. On 23.12.2020,the case of the petitioner was dealt with and aquestionnaire was issued to him under Section 142(1) on28.01.2021. The questionnaire sought explanations to theunaccounted cash, jewellery and loose documents &sheets. On 31.01.2021, the petitioner filed his return ofincome declaring a total income of Rs.42,74,290/- only.On 19.02.2021, the Assessing Officer issued notice underSection 142(1) to the petitioner to produce relevantdocuments and accounts in support of the returns filed bythe petitioner. The petitioner filed his reply to the notice.Thereafter, the Assessing Officer passed an order underSection 143(3) of the Act on 02.09.2021 wherein certainadditions were made to the income that was declared bythe petitioner on the basis of unexplained cash and onaccount of excess stock not recorded in the books ofaccounts. The petitioner preferred an appeal on30.09.2021 before the Commissioner of Income Taxagainst the Assessment Order dated 02.09.2021. Duringthe pendency of the appeal, the Revenue Audit raised anobjection to the Assessment Order dated 02.09.2021 thatthe Assessment has not been conducted in a mannerprescribed by the Act and there was violation of Section69(A) of the Act. The Respondents issued notice on thebasis of Audit Objections under Section 148A(b) of theIncome Tax Act on 27.03.2024. The petitioner submitted adetailed reply wherein he asked for copies of AuditObjections and all relevant documents and also asked forpersonal hearing, a copy of the reply dated 12.04.2024has been filed as Annexure-16 to the writ petition.However, order has been passed by the Respondentunder Section 148A(d) of the Act on 20.04.2024 rejectingthe reply submitted by the petitioner without providing himcopies of Audit Objections and also without providing himopportunity of personal hearing. A notice under Section148 of the Act has also been issued on the same date on20.04.2024, proposing reassessment of income. On06.05.2024, the petitioner again applied for certifiedcopies of the record of assessment proceedings as wellas reassessment proceedings. This application was filed 4. Learned counsel for the petitioner has placed relianceupon the judgement rendered by the High Court ofMadras (Madurai Bench) in the case of Beboy JosephJohn Vs. Assistant Commissioner of Income Taxreported in MANU/TN/9885/2022 and paragraphs 2, 12and 13 thereof and a judgement rendered by the HighCourt of Bombay in the case of Tata Capital FinancialServices Limited Vs. Assistant Commissioner ofIncome Tax reported in MANU/MH/1049/2022. 4. Learned counsel for the petitioner has placed relianceupon the judgement rendered by the High Court ofMadras (Madurai Bench) in the case of Beboy JosephJohn Vs. Assistant Commissioner of Income Taxreported in MANU/TN/9885/2022 and paragraphs 2, 12and 13 thereof and a judgement rendered by the HighCourt of Bombay in the case of Tata Capital FinancialServices Limited Vs. Assistant Commissioner ofIncome Tax reported in MANU/MH/1049/2022. 5. Learned counsel for the petitioner has also placedreliance upon a Circular issued by the Government ofIndia, Ministry of Finance, Department of Revenue,Central Board of Direct Taxes on 22.08.2022 regardinguploading of data on functionalities/portal of the IncomeTax Department and Guidelines for issuance of noticeunder Section 148 of the Income Tax Act. 6. Learned counsel for the petitioner has read out theamended instructions especially instruction relating to theassessee making a request for personal hearing to berespected and reasonable opportunity to be given to theassessee. 7. Learned counsel appearing for the respondents no. 2and 3, however, has referred to a judgement rendered bythe High Court of Kerala at Ernakulam in the case of M/sSree Narayana Guru Memorial Educational andCultural Trust Vs. The Assistant Commissioner ofIncome Tax in Writ Petition (C) No. 11891 of 2023decided on 19.02.2024. 8. We have gone through the judgements cited by thelearned counsel appearing for the respondents no.2 & 3and paragraph-6 thereof, which is being quoted hereinbelow:- "6. Learned Counsel for the petitioner has placed relianceon the judgment of the Supreme Court in the case ofIndian and Eastern Newspaper Society v. Commissionerof Income Tax'. However, the said judgment wasrendered when there was no such clause as has beeninserted with effect from 01.04.2022 in Explanation 1 ofSection 148 of the Act. Therefore, in my view, the saidjudgment is of no relevance to the facts of the presentcase. In the present case, the provisions have been drastically changed with effect from 01.04.2022, and theaudit objection is one of the reasons for re- opening theassessment. If the revenue audit raises an objection thatthe assessment was not completed in accordance withthe provisions of the Act, it cannot be treated as a changeof opinion because this is 'the statutory prescription andstatutory ground/reason for re-opening the assessment.The Assessing Authority has proceeded strictly inaccordance with the provisions of Clause (ii) ofExplanation 1 to Section 148 of the Act. Therefore, I findno error of law or jurisdiction in the impugned order.Therefore, the writ petition is dismissed." 9. From the judgement of the High Court of Kerala atErnakulam, it is not clear at all where the High Court ofKerala has held that the respondent can ignore theCircular dated 22.08.2022 or even the Circular dated01.08.2022 issued by the Central Board of Direct Taxes. 10. Learned counsel for the respondents, at this stage,has pointed out that he has only cited the judgement ofKerala High Court to show that the objection taken by thepetitioner with regard to Audit Objections not beingconsidered to be an information that can be relied uponfor issuance of a show cause notice under Section148A(b) was untenable. 11. Learned counsel appearing on behalf of therespondents no.2 & 3 has also cited a judgement by theCoordinate Bench of this Court in Writ Tax No. 968 of2023, "Vivek Saran Agarwal Vs. Union of India and 3Others", and has relied upon the observations regardingdetailed hearing not being necessary to be given at thestage of issuance of show cause notice under Section148A(b) and before passing of the order under Section148A(d). It has also been observed by the Division Benchthat thrashing out of evidence and relevant statutoryprovisions shall be considered only after the order underSection 148 for reopening of assessment is passed. 11. Learned counsel appearing on behalf of therespondents no.2 & 3 has also cited a judgement by theCoordinate Bench of this Court in Writ Tax No. 968 of2023, "Vivek Saran Agarwal Vs. Union of India and 3Others", and has relied upon the observations regardingdetailed hearing not being necessary to be given at thestage of issuance of show cause notice under Section148A(b) and before passing of the order under Section148A(d). It has also been observed by the Division Benchthat thrashing out of evidence and relevant statutoryprovisions shall be considered only after the order underSection 148 for reopening of assessment is passed. 12. Learned counsel for the Respondents no. 2 & 3 hasalso relied upon the judgment rendered by the Hon'bleSupreme Court in the Case of Raymond Woollen MillsLtd. Vs. Income Tax Officer and Others reported in2008 (14) SCC 218 and also in the case of Anshul JainVs. Principal Commissioner of Income Tax in SpecialLeave to Appeal No. 14823 of 2022 decided on02.09.2022. 13. We do not dispute the law as settled not only by theCoordinate Bench of this Court in Vivek Saran Agarwal(Supra), but also by the Supreme Court in the Case ofRaymond Woollen Mills Ltd. (Supra) and Anshul Jain(Supra). 14. This Court has not made any observations regardingthe merits of the case that has been set up by thepetitioner before the Assessing Officer. It is only withrespect to providing reasonable opportunity of hearing asper Circular dated 22.08.2022 of the Central Board ofDirect Taxes that this Court has found that suchreasonable opportunity of hearing was not given beforeOrder under Section 148(d) was issued. 15. In our considered opinion, there is no disputeregarding explanation given under Section 148 regardinginformation that can be relied upon by the AssessingOfficer to reopen assessment of escaped income.Revenue Audit Objections can be considered as a validground for opening assessment that has concluded. 16. This Court is of the considered opinion that the replyof the petitioner had specifically asked for documents tobe supplied including complete case proceedings and forpersonal hearing, which was not given. The AssessingOfficer has acted in undue haste. 17. The orders dated 20.04.2024 under Section 148A(d)and under Section 148 are set aside. The respondentsshall provide all relevant documents that have beenasked for by the petitioner in his representation by makingpayment of necessary fees to the department, within aperiod of one week from today. The petitioner shall submithis reply within one week, thereafter. A personal hearingshall be given by the Assessing Officer, and an orderunder Section 148(d) be passed after considering thesubmissions made by the petitioner in his reply as also hispersonal hearing within three weeks, thereafter. 18. Accordingly, the writ petition is allowed only to thisextent. Order Date :- 30.7.2024N.PAL