Gurcharan Singh v. Income Tax Officer, Ward-1(1), Bathinda

CWP-8959-2022 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH 232 CWP-8959-2022 (O&M) Decided on : 09.09.2024 Gurcharan Singh Versus Income Tax Officer, Ward-1(1), Bathinda . . . Petitioner(s) . . . Respondent(s) CORAM: HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMAHON'BLE MR. JUSTICE SANJAY VASHISTH PRESENT: Mr. Prince Goyal, Advocatefor the petitioner(s).for the petitioner(s). Ms. Urvashi Dhugga, Sr. Standing Counselfor the respondent(s). **** SANJEEV PRAKASH SHARMA, J. (Oral) 1.Both the counsel are ad idem that the issue raised in the presentwrit petition stands duly adjudicated by the Coordinate Bench of this Court“in CWP-8784-2022, titled as, Saroj Rani vs. Income Tax Officer, Ward 1, Bathinda”, decided on 20th February, 2023. In that case, although the replywas filed, but the same had not been taken into consideration and the orderunder Section 148A(d) of the Income Tax Act, 1961 (for brevity, ‘the Act’)had been passed. This Court observed as under:- “The above said provision makes it abundantly clear thatit is the duty of the Assessing Officer to consider the replyfiled by the assessee. In the present case, the reply wasalready received by the department as it is evident from thereply filed by the respondent. However, the only ground takenin not considering the reply is that on earlier date i.e.28.03.2022 the order had been drafted and had been sent to thePrincipal Chief Commissioner for approval. However, as perit is the duty of the Assessing Officer to consider the replyfiled by the assessee. In the present case, the reply wasalready received by the department as it is evident from thereply filed by the respondent. However, the only ground takenin not considering the reply is that on earlier date i.e.28.03.2022 the order had been drafted and had been sent to thePrincipal Chief Commissioner for approval. However, as per - 2 - noting (Annexure R-2), it is clear that on 28.03.2022 when theorder was sent for approval it was sent back for somecorrection and on 29.03.2022, the Assessing Officer wasalready in possession of the reply. Keeping in view the aforesaid judgment passed by theDelhi High Court, the instant petition is allowed and ordersdated 31.03.2022 (Annexures P-4 and P-5) are being set asideand direction is given to the Assessing Officer to pass a freshorder after examining the reply dated 29.03.2022 filed by thepetitioner (Annexure P-2) and pass a speaking order thereafterin accordance with law.” 2.In the present case, as per the reply filed by the respondent –revenue, it is stated that the reply filed by the assessee on 24[th] March, 2022,did not appear in the account of this office and as per record, the incidentbearing No.1748977 was raised by the Assessing Officer through ITBAHelpdesk Service on 23[rd] May, 2022, thereby, requesting to provide solution,as the reply of the assessee is not showing on ITBA system. The ITBAHelpdesk provided the solution as under:- “Dear user, assessee response has been inwarded frome-filing portal and available to download now from casehistory/notings screen. Kindly download 7-zip application insystem to open files with .gz extension.” 3.Since the reply filed by the petitioner – assessee was notavailable, when order under Section 148-A(d) of the Act, was drafted on 29[th]March, 2022 and submitted to the higher authorities for approval and finalorder was passed on 31.03.2022, we are satisfied that the reply has not beenconsidered, which is sine qua non for passing an order. In view of above, we allow this writ petition and set-aside the CWP-8959-2022 (O&M) “Dear user, assessee response has been inwarded frome-filing portal and available to download now from casehistory/notings screen. Kindly download 7-zip application insystem to open files with .gz extension.” 3.Since the reply filed by the petitioner – assessee was notavailable, when order under Section 148-A(d) of the Act, was drafted on 29[th]March, 2022 and submitted to the higher authorities for approval and finalorder was passed on 31.03.2022, we are satisfied that the reply has not beenconsidered, which is sine qua non for passing an order. In view of above, we allow this writ petition and set-aside the CWP-8959-2022 (O&M) order dated 31.03.2022, passed by the respondent – revenue under Section148-A(d) of the Act and direct the respondent – revenue to download thereply, which is already available in the ITBA Helpdesk (as quoted above)and after considering the said reply, they would be free to pass a fresh order.If such an order is passed, the petitioner – assessee would be free to assailthe same, if aggrieved from it in any manner. It is made clear that since the order was passed under Section148-A(d) of the Act, coming in the new regime, the concerned JurisdictionalAssessing Officer, who would examine the same, as per the position existingon 31[st] March, 2022. Petition stands disposed of. Pending misc. application(s), if any, also stand disposed of. (SANJEEV PRAKASH SHARMA)JUDGE September 09, 2024J.Ram (SANJAY VASHISTH)JUDGE Whether speaking/reasoned: Yes/NoWhether Reportable: Yes/No