Bidam Devi v. Income Tax Officer, Ward 1(1), Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 18263/2023 Bidam Devi W/o Ramchandra Choudhary aged about 57 years,R/o Resident of ha, Ganpat Pura, Chak No.2, Mansarovar, Jaipur302020. ----Petitioner Versus Income Tax Officer, Ward 1(1), Jaipur Having Its Address At NewCentral Revenue Building, Bhagwan Das Road, Jaipur-302005. ----Respondent For Petitioner(s) : Ms. Apeksha Bapna Advocate on behalf of Mr. Siddharth Ranka Advocate. For Respondent(s): Mr. Anuroop Singhi Advocate with Mr. N.S. Bhati Advocate.Mr. Sandeep Pathak Advocate. HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MRS. JUSTICE SHUBHA MEHTA Order 22/11/2023 1.Heard on admission. 2.Learned counsel for the petitioner would argue that initiationof proceedings under Section 148A(b) of the Income Tax Act, 1961(hereinafter referred to as ‘the Act of 1961’), order dated21.04.2023 passed under Section 148A(d) of the Act of 1961 asalso notice under Section 148 of the Act of 1961 issued on21.04.2023, re-opening assessment in relation to assessment year2016-17 is illegal, arbitrary, violative of principles of naturaljustice as also against statutory provisions contained in Section282 of the Act of 1961 read with Rule 127 of the Income TaxRules, 1962. It is submitted that Notification No.04/2017 dated 03.04.2017 issued by the Central Board of Direct Taxes has alsobeen violated. When the petitioner received notice under Section148 of the Act of 1961 on her registered main address, she cameto know about the proceedings initiated under Section 148A andorder passed thereunder. The petitioner submitted a detailedapplication for rectification of mistake under Section 154 of theAct of 1961. In the application, it was highlighted that properenquiry has not been conducted. It was also stated therein thatpetitioner had purchased an immovable property for a total saleconsideration of Rs.42,27,554/- and copy of sale deed was alsoannexed. But there was no due consideration of the applicationand vide order dated 06.09.2023 that application has also beenrejected. The proceedings could not have been initiated by theJurisdictional Assessing Officer but only by the Assessing Officeras per Notification dated 29.03.2022 issued by the Central Boardof Direct Taxes. Therefore, it is in violation of provisions containedin Section 151A of the Act of 1961. It is also the submission thatas per the Notification dated 29.03.2022, the Assessment Unitwas required to assign the same to NFAC and the impugned Noticeunder Section 148 could not have been issued by the respondent-authority and for that reason, the notices are in violation ofprovisions contained in Section 144B of the Act of 1961. Noreason has been assigned as to why no enquiry proceedings wereinitiated by the Assessing Officer under Section 148A(a) of the Actof 1961 prior to issuance of Notice under Section 148A(b) of theAct of 1961. 3.We have considered the submission of learned counsel forthe petitioner. 3.We have considered the submission of learned counsel forthe petitioner. 4.A notice under Section 148A(b) of the Act of 1961 wasissued to the petitioner on 30.03.2023 on the basis of informationwhich suggested that income chargeable to tax for theAssessment Year 2016-17 has escaped assessment. This wasbased on an information with regard to transaction of purchases ofa residential immovable property of the value of Rs.84,55,108/-.The assessee while filing her return of income on 01.08.2016 haddeclared total income of Rs.2,53,150/-. A perusal of order dated21.04.2023 passed under Section 148A(d) of the Act of 1961shows that it was recorded therein that even though assessee wasrequired to furnish reply, but no reply has been furnished. Thisfollowed issuance of notice under Section 148 of the Act of 1961on 21.04.2023. However, the petitioner did not challenge issuanceof notice under Section 148A(b) of the Act of 1961, nor didchallenge the order dated 21.04.2023 passed under Section148A(d) of the Act of 1961, nor did challenge notice under Section148 issued on 21.04.2023. Even according to the petitioner, noticeunder Section 148 of the Act of 1961 was received by her. If thepetitioner had any such grievance that the notice and orderpassed earlier have not been served, it could have challenged thesame. As late as on 08.06.2023, the petitioner filed a rectificationapplication under Section 154 of the Act of 1961 wherein, shestates that show cause notice under Section 148A(b) of the Act of1961 was issued on 30.03.2023. In that application, there is nowhisper that either notice dated 21.03.2023 or subsequent orderpassed under Section 148A(d) on 21.04.2023, was not served onher. All that has been stated is that proper enquiry has not beenconducted with respect to the information. Petitioner sought to justify that her investment towards purchase was only 50%, i.e.,Rs.42,27,554/-. It is, thus, clear that the ground raised in thispetition that the petitioner was not served with notice dated30.03.2023 under Section 148A(b) and subsequent order dated21.04.2023 passed under Section 148A(d) is an afterthought. Therectification application was rejected vide order dated 06.09.2023.It has been stated in that order that even though assessee wasprovided sufficient time, she did not avail the same. She did notfile any explanation/documentary evidence with regard to theinformation communicated to her which led to passing of an orderunder Section 148A(d) of the Act of 1961 after due approval of theCompetent Authority. It has also been stated therein that the caseof the assessee is pending before the Faceless Assessment Unitwith NaFAC to finalize the assessment in the faceless manner afternecessary enquiries. It is not the case of the petitioner that thesource of income invested in purchasing immovable property wasdisclosed while filing return of income. Even according to thepetitioner, Rs.42,27,554/- was paid. The petitioner filed incometax return for the concerned assessment year declaring her totalincome only Rs.2,53,150/-. 5.Reliance placed on the judgment of the Division Bench of thisCourt, at Jodhpur in the case of Rajhans Processors Union ofIndia & Others, D.B. Civil Writ Petition No.16985/2021,decided on 08.02.2023, does not come to the aid of the petitioneras in the present case, the facts are different. In the said case,there was an admission on the part of the authority that in itsorder, there is no material on record on the basis of which, theA.O. would form a bonafide belief that income of the assessee has escaped assessment for the concerned Assessment Year. In thepresent case, facts are different. 6. In view of the above consideration, no case is made out forissuance of notice. 7. Therefore, the petition is dismissed in limine. 8. It is, however, made clear that it will be open for the petitionerto raise all the grounds available to her under the law in the re-assessment proceedings against any addition proposed. escaped assessment for the concerned Assessment Year. In thepresent case, facts are different. 6. In view of the above consideration, no case is made out forissuance of notice. 7. Therefore, the petition is dismissed in limine. 8. It is, however, made clear that it will be open for the petitionerto raise all the grounds available to her under the law in the re-assessment proceedings against any addition proposed. (SHUBHA MEHTA),J(MANINDRA MOHAN SHRIVASTAVA),ACTING CJ SANJAY KUMAWAT-52