Apot/344/2023 Of Income Tax Officer, Ward-44(2),Kolkata v. Gupta Trading Co

OD-4 IN THE HIGH COURT AT CALCUTTACIVIL APPELLATE JURISDICTIONORIGINAL SIDE APOT 344 OF 2023IA NO: GA/1/2023, GA/2/2023INCOME TAX OFFICER, WARD-44(2), KOLKATA-Versus- GUPTA TRADING CO. BEFORE: The Hon’ble T.S. SIVAGNANAM, CHIEF JUSTICE -And- Date : 18[th ]November, 2023 The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Appearance :Mr. Prithu Dudhoria, Adv...for the appellantMr. Hemant Tiwari, Adv.…for the respondent The Court : This intra-court appeal by the revenue is directed againstthe order dated 9[th] September, 2022 passed in WPO No. 2540 of 2022. There is a delay of 347 days in filing the appeal. We have heard thelearned Advocate for the parties and perused the averment set out in thecondone delay petition and we find sufficient cause has been shown for notpreferring the appeal within the period of limitation. Accordingly, the delay iscondoned. The application being GA 1 of 2023 is allowed. The respondent/writ petitioner challenged the order dated 30[th] June,2022 passed under Section 148A(d) of the Income Tax Act, 1961, relating tothe assessment years 2016-17, on the ground that the notice for reopeningunder Section 148 of the Act was issued much prior to the passing of theorder under Section 148A(d) of the Act. The learned Single Judge after noting the facts which remaineduncontroverted allowed the writ petition on the ground that the notice underSection 148 could not precede an order to be passed under section 148A(d) ofthe Act. We have perused the documents placed on record and we find that thenotice under Section 148 is dated 28[th] June, 2022 and it is stated in the saidnotice that it is issued pursuant to an order which has been passed underSection 148A(d) of the Act. It is an admitted fact that as on the said datenamely 28[th] June, 2022 there was no order passed under section 148A(d) ofthe Act which was admittedly passed on 30[th] June, 2022. Before us therevenue seeks to contend that it is a typographical mistake. However, itappears to be not being the stand of the department at any earlier point oftime. Moreover, we find that the order under section 148A(d) dated 30[th] June,2022 at 4.43 PM. Therefore, the theory of the typographical mistake isuntenable. Thus, we find that the learned Single Judge was fully justified inallowing the writ petition and no grounds have been made out to interferewith the said order. Accordingly, the appeal fails and is dismissed. The stay application GA 2 of 2023 is also dismissed. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) SN/GH. AR(CR)