Apo/79/2023 Ia No: Ga/1/2023 Nitin Agarwal v. Income Tax Officer, Ward-46(1), Kolkata And Ors

OD 2 IN THE HIGH COURT AT CALCUTTACIVIL APPELLATE JURISDICTIONORIGINAL SIDE APO/79/2023IA NO: GA/1/2023NITIN AGARWALVSINCOME TAX OFFICER, WARD-46(1), KOLKATA AND ORS BEFORE :THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 13 OCTOBER, 2023 Appearance : Ms. Sutapa Roy Chowdhury, Adv.Ms. Aratrika Roy, Adv.…for petitionerMr. Prithu Dudheria, Adv.…for respondent The Court : - This intra-court appeal filed by the writ petitioner is directedagainst the order dated 8.6.2023 in WPO/1096/2023. In the said writ petition,the appellant had challenged the order passed by the assessing officer dated13.4.2023 under Section 148A(d) of the Income Tax Act, 1961 (the Act) relatingto the assessment year 2019-20. The principal ground on which the order waschallenged is by contending that it has been passed by violation of principles ofnatural justice inasmuch as the appellant has not been granted an opportunityof personal hearing. On perusal of the order dated 13.4.2023 passed under Section 148A(d) ofthe Act, it is seen that the assessing officer has stated that an opportunity ofbeing heard as per Section 148A(b) of the Act was provided to the assessee alongwith a copy of information and material relied upon by notice dated 27.3.23.This notice called upon the assessee to furnish a reply along with supportive documents on the allegation set out in the annexure to the notice and we findthat the notice is not a notice of personal hearing. The assessee responded tothe said notice and submitted their reply dated 31.3.23, apart from denying theallegation made against them. They requested to furnish those documents,information, enquiry and/or credential information which has been relied on bythe department and reserved their right to make further objection as soon as thedocuments are supplied to them. Thereafter, another notice was issued underSection 148A(b) of the Act enclosing certain information. It is pointed out by thelearned Advocate for the appellant that in the information only in one place thename of the assessee figures stating as per the GST data the parties have takenaccommodation entry from the assessee. The assessee responded to the saidnotice by submitting a reply on 12.4.23 contending that as per the record of thedepartment M/s. Agnibhoo Sales Pvt. Ltd. failed to reply to the summons issuedon 7.2.23 and this Court can never imply that they have denied or disputed thepurchases effected by the assessee. Assessee further stated that in the absenceof any such denial, the purchases made are admitted facts and the assessee hasalready provided party ledger, account confirmation bill signed by AgnibhooSales Pvt. Ltd. and purchase register. Therefore, it is contended that byspeculation it cannot be said that the purchases made by the assessee are bogusor fake. Further the assessee stated that the document provided by thedepartment are neither relevant nor does it indicate any bogus purchases madeby them and in the document there is no whisper about the assessee that anyincome has escaped assessment.Once again, the assessee sought for the relevant documents and liberty tofile an additional objection. The reply given by the assessee on 12.4.23 has notbeen taken into account in the manner it should have been done, though the assessing officer refers to the said reply in pages 3 and 4 of the order dated13.4.23. As pointed out earlier, the notice dated 27.3.23 is not a notice ofpersonal hearing. Therefore, the authority while passing the order impugned inthe writ petition has violated the principles of natural justice and inasmuch asthe statute also provided that opportunity be granted to the assessee before anassessment is reopened. Therefore, we are satisfied that there has been violationof principles of natural justice and, therefore, the assessee has to be provided anopportunity of personal hearing and also be given liberty to furnish additionaldocuments to support their stand. For the above reasons, the order impugnedin the writ petition dated 13.4.23 passed under section 148A(d) of the Act isdirected to be treated as a notice under Section 148A(b) of the Act and assesseebe directed to file further objection along with supportive documents and onreceipt of the further objection and supportive documents, the assessing officeris directed to fix a date for personal hearing to hear the authorizedrepresentative of the assessee and pass fresh orders on merits and inaccordance with law. The assessee is directed to file their reply within a period of30 (thirty) days from the date of receipt of the server copy of this order. During the course of personal hearing, the petitioner may make a requestfor supply of any additional document that may be relied upon by thedepartment. The appeal is allowed with the above observations. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)