Apot/176/2023 Ia No. Ga/1/2023, Ga/2/2023 Agni Transport Private Limited v. Income Tax Officer Ward 11(1) And Ors

OD-13 IN THE HIGH COURT AT CALCUTTACIVIL APPELATE JURISDICTIONORIGINAL SIDE APOT/176/2023IA NO. GA/1/2023, GA/2/2023AGNI TRANSPORT PRIVATE LIMITEDVS.INCOME TAX OFFICER WARD 11(1) AND ORS. BEFORE:THE HON’BLE THE CHIEF JUSTICE T. S. SIVAGNANAM ANDThe Hon’ble JUSTICE AJAY KUMAR GUPTADate : 28 JUNE 2023. Mr. Pratyush Jhunjhunwala, Adv.…for appellant.Mr. Aryak Dutt, Adv. …for respondents. The Court :- This appeal filed by the writ petitioner against theorder dated 06.06.2023 in WPO/1092/2023. The writ petition was filed bythe appellant challenging the order dated 23.07.2022 passed under Section148(d) of the Income Tax Act, 1961, relating to the assessment year 2014-15.The writ petition was dismissed on the ground that the Writ Court cannotshut its eyes and ignore bogus transaction by cell companies and Courtcannot exercise jurisdiction under Article 226 of the Constitution. It appearsthat there was an allegation that there were certain bogus transactions.Nevertheless, the prayers sought for in the writ petition is to quash theproceeding order passed under Section 148(d) of the Act. As against such anorder no appeal or revisional remedy has been provided under the provisionsof the Income Tax Act, 1861. Therefore, the correctness of the order has tobe examined as and when a challenge occurs. In the instant case, theappellant has raised an issue stating that a notice under Section 148 cannot be issued after the lapse of six years from the end of the relevantassessment year and in the instant case, it is stated that the six years fromthe end of the relevant assessment year was lapsed on 31.03.2021 and thenotice under Section 148 which was subsequently treated as a notice underSection 148A was issued on 28.06.2021 and, therefore, the order dated23.07.2022 and the notice under Section 148A(d) dated 24.05.2022 togetherwith the notice under Section 148 for the assessment year 2014-15 is barredby law and is to be treated as invalid. Since such a contention has beenraised, we are of the view that the respondent should be given an opportunityto rebutt such contention/grounds which has been raised by the appellantamong other grounds. Therefore, we are of the view that it will be better ifaffidavit-in-opposition is directed to be filed by the respondent and thereafter,the writ petition can be disposed of by recording finding of facts and law. In the light of the above, we are of the view that the writ petitionshould be heard and decided on merits. In the result, the appeal is allowed. The order passed in the writpetition is set aside and the writ petition stands restored to the file of SingleBench. The respondent is directed to file their affidavit-in-opposition withinthree weeks, reply, if there be any, within two weeks thereafter and let thewrit petition be listed before the concerned Hon’ble Court in the weekcommencing 1[st] August, 2023. In the light of the above order, till the matter is being heard by thelearned Single Bench, the respondent department shall not proceed withreassessment proceeding. The applications being GA/1/2023 and GA/2/2023 standdisposed of. (T. S. SIVAGNANAM)CHIEF JUSTICE (AJAY KUMAR GUPTA, J.) Pkd/GH.