Expandable Enterprises Private Limited v. Income Tax Officer, Ward 9(1), Kolkata & Ors

Form No. J.(2)Item No.6 IN THE HIGH COURT OF JUDICATURE AT CALCUTTACIVIL APPELLATE JURISDICTIONAPPELLATE SIDE HEARD ON: 09.04.2024 DELIVERED ON: 09.04.2024 CORAM: THE HON’BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM AND THE HON’BLE MR. JUSTICE HIRANMAY BHATTACHARYYA F.M.A. 19 of 2024 With I.A. No. CAN 1 of 2023 Expandable Enterprises Private Limited Vs. Income Tax Officer, Ward 9(1), Kolkata & Ors. Appearance:-Mr. Avra MajumderMr. Ramesh Kumar PatodiaMs. Megha Agarwal ………for the Appellant Mr. Vipul KundaliaMr. Amit Sharma ………for the Respondents JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.) 1.This intra-Court appeal by the writ petitioner is directed against the orderdated 8[th] June, 2023. In the said writ petition, the appellant hadchallenged the order passed under Section 148A(d) of the Income Tax Act,1961 (for brevity, “the Act”) dated 12[th] April, 2023 for the assessment year2019-2020 on the ground that the requisite approval under Section 151 ofthe Act was not obtained with particular reference to the alleged bogussales to the tune of Rs.22.63 lakhs. dated 8[th] June, 2023. In the said writ petition, the appellant hadchallenged the order passed under Section 148A(d) of the Income Tax Act,1961 (for brevity, “the Act”) dated 12[th] April, 2023 for the assessment year2019-2020 on the ground that the requisite approval under Section 151 ofthe Act was not obtained with particular reference to the alleged bogussales to the tune of Rs.22.63 lakhs. 2.The learned Single Bench has dismissed the writ petition and aggrieved bythe same, the present appeal was filed.the same, the present appeal was filed. 3.When the appeal was heard on 20[th] February, 2024, this Court passed thefollowing order:-following order:- “1. We have heard the learned advocate for theappellant. The respondent department is directed to givewritten instruction to the learned standing counsel forthe Income Tax Department as to whether the sum ofRs.22.63 lacs alleged to be bogus sale was forming partof the information placed before the Commissioner ofIncome Tax while obtaining approval under Section 151of the Income Tax Act, 1961 dated 12.04.2023. 2. The case of the appellant is that while obtainingan approval as could be seen from the annexure to theorder of approval dated 12.04.2023 the information wasonly under four heads and the allegation of bogus saleto the tune of Rs.22.63 lacs did not form part of the saidinformation. However, this finds place in the showcause notice. Therefore, it is submitted that initiation ofreopening proceeding in respect of this amount on thealleged ground of bogus sale is without jurisdiction asthe specified authority has not granted any approval. 3. Let such written instruction be given to thelearned standing counsel within two weeks from date. 4. List the matter on 12th March, 2024.” 4.Thereafter, the matter was adjourned twice to enable the learned advocate appearing for the respondent/Department to get specific writteninstruction. Today, when the matter is taken up, the ITO, Ward 9(1),Kolkata has given a specific written instruction dated 8[th] April, 2024. Onperusal of the instruction, it is prima facie seen that while seeking forapproval of the competent authority, the total value was mentioned asRs.1407.22 lakhs, which includes the alleged bogus sales of Rs.22.63lakhs. 5. Further a statement has been made that so far as the question of theamount mentioned in the approval under Section 151 and the annexures to 3. Let such written instruction be given to thelearned standing counsel within two weeks from date. 4. List the matter on 12th March, 2024.” 4.Thereafter, the matter was adjourned twice to enable the learned advocate appearing for the respondent/Department to get specific writteninstruction. Today, when the matter is taken up, the ITO, Ward 9(1),Kolkata has given a specific written instruction dated 8[th] April, 2024. Onperusal of the instruction, it is prima facie seen that while seeking forapproval of the competent authority, the total value was mentioned asRs.1407.22 lakhs, which includes the alleged bogus sales of Rs.22.63lakhs. 5. Further a statement has been made that so far as the question of theamount mentioned in the approval under Section 151 and the annexures to it is concerned, it is submitted that due to some technical problem, thedraft proposal details, which were submitted earlier, and appearing asannexure to the approval under Section 151 of the Act could not beupdated and, therefore, the approval and the annexure to it showing thevalue of Rs.1384.59 lakhs, whereas the order under Section 148A(d) inpara 6.1 is correctly showing the amount i.e. bogus sale of Rs.22.63 lakhs,based on which the case has been reopened and the same has beenapproved by the specified authority after perusing the draft order to bepassed under Section 148A(d) of the Act. 6. Thus, in the light of the above, we are of the view that there are seriousdisputed questions of fact, which cannot be adjudicated in a writ petitionand therefore, the appropriate course to be adopted by the petitioner is toface the reopening proceeding in which all grounds including the grounds,which were canvassed before this Court in the present appeal shall beraised. 7.With the above observations, appeal and the connected application (I.A. No.CAN 1 of 2023) stand disposed of. CAN 1 of 2023) stand disposed of. 8.No costs. 9.Urgent photostat certified copy of this order, if applied for, be furnished tothe parties expeditiously upon compliance of all legal formalities. the parties expeditiously upon compliance of all legal formalities. (T.S. SIVAGNANAM) CHIEF JUSTICE I agree. (HIRANMAY BHATTACHARYYA, J.) Pallab/KS AR(Ct.)