Harigovind v. The Assistant Commissioner Of Income Tax,Non Corp Circle 3(1), Wanaparthy Block

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.04.2022 CORAM THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P.Nos.9958 & 9994 of 2022 Harigovind... Petitioner in WP.No.9958/2022G.Ravindran ... Petitioner in WP.No.9994/2022 Vs The Assistant Commissioner of Income Tax,Non Corp Circle 3(1), Wanaparthy Block,121, Mahatma Gandhi Road,Nungambakkam, Chennai – 600 034. ... Respondent in both WPs Prayer in WP.No.9958/2022 : Petition filed under Article 226of the Constitution of India, praying for issuance of a Writof Certiorari to call for the records of the respondent andquash the impugned order under Section 148A(d) of the IncomeTax Act, 1961, dated 30.03.2022 in DIN & NoticeNo.ITBA/AST/F/148A/2021-22/1042169851(1) and the consequentialnotice u/s.148 of the Act dated 31.03.2022 in DIN & NoticeNo.:ITBA/AST/S/148_1/2021-22/1042278799(1) for the Assessmentyear 2018-19. Prayer in WP.No.9994/2022 : Petition filed under Article 226of the Constitution of India, praying for issuance of a Writof Certiorari to call for the records of the respondent andquash the impugned order under Section 148A(d) of the IncomeTax Act, 1961, dated 31.03.2022 in DIN & NoticeNo.ITBA/AST/F/148A/2021-22/1042317528(1) and the consequentialnotice u/s.148 of the Act dated 31.03.2022 in DIN & NoticeNo.:ITBA/AST/S/148_1/2021-22/1042370642(1) for the Assessmentyear 2018-19. In both WPsFor Petitioners : Mr.R.Vijayaraghavan for Mr.Subbaraya Aiyar Padmanabhan for Mr.Subbaraya Aiyar Padmanabhan For Respondent : Mrs.Hema Muralikrishnan Senior Standing Counsel Senior Standing Counsel COMMON ORDER Both the petitioners are assessees under the respondentand in order to reopen the assessment for the assessment year2018-19 under Section 147 of the Act, notice has to be issuedunder Section 148 of the Act i.e., Income Tax Act, 1961.However, as per the amendment made which came into effect from01.04.2021, Section 148A was inserted, through which, theprocedure contemplated under the said Section has to befollowed before issuing notice under Section 148 of the Act. 2. In short, whether notice under Section 148 can beissued against an assessee or not can be decided by exhaustingthe procedure contemplated under Section 148A of the Act. 3. Accordingly, notices under Section 148A of the Actwere issued and the said notices dated 15.03.2022 and14.03.2022 were, in fact, responded by the petitionersassessees on 21st March 2022, where, among other things, theysought for the information with the Department together withthe copy of the satisfaction obtained from the PrincipalCommissioner of Income Tax, once that is furnished theassessees would furnish a detailed reply with reference to theinformation furnished. 4. In response to the said request made by the assessees,only on 29th March 2022 those information had been furnished bythe Revenue to the assessees. 5. On receipt of such informations, the petitionersassessees sent a communication on 29th March 2022 itself to theRevenue stating that, since those informations have beenfurnished only today i.e., 29th March 2022, they need a week'stime to study the same and reply to the respondent by way ofobjections, hence, they sought for one week adjournment. 6. Despite the said communications have been made by thepetitioners assessees seeking for one week adjournment torespond, on 30.03.2022 and 31.03.2022, orders under Section148A was passed rejecting the plea of the petitioners bydeciding that, Section 148 notice can be issued against theassessees to proceed further, that orders are under challengein these writ petitions. 5. On receipt of such informations, the petitionersassessees sent a communication on 29th March 2022 itself to theRevenue stating that, since those informations have beenfurnished only today i.e., 29th March 2022, they need a week'stime to study the same and reply to the respondent by way ofobjections, hence, they sought for one week adjournment. 6. Despite the said communications have been made by thepetitioners assessees seeking for one week adjournment torespond, on 30.03.2022 and 31.03.2022, orders under Section148A was passed rejecting the plea of the petitioners bydeciding that, Section 148 notice can be issued against theassessees to proceed further, that orders are under challengein these writ petitions. 7. Heard Mr.R.Vijayakumar, learned counsel appearing forthe petitioners, who would submit that, under Section 148A(b),if a hearing has to be given by giving a notice, atleast 7days shall be given to the assessee to reply and in thesecases, such a one week time was sought for by the petitioners,that was impliedly denied by passing the impugned orders dated30.03.2022 and 31.03.2022, therefore, on that ground itself,the impugned orders are vitiated, he contended. 8. However, Mrs.Hema Muralikrishnan, learned SeniorStanding Counsel appearing for the Revenue would submit that,the one week time sought for by the petitioners by theirrequest dated 29.03.2022 cannot be treated as the notice timeof one week as contemplated under Section 148A(b) of the Actas that one week time already been given, for which, thepetitioners also responded by giving reply. 9. When that being so, once again they cannot take aground that, further one week is to be given within themeaning of sub-section (b) of Section 148A of the Act,therefore, on that ground, the impugned orders cannot beassailed, she submitted. 10. I have considered the said rival submissions made bythe learned counsel for the parties and have perused thematerials placed before this Court. 11. The language used by the Legislature in Section 148A,especially sub-section (b) reads thus: “Provide an opportunity of being heard to theassessee, with the prior approval of specifiedauthority, by serving upon him a notice to showcause within such time, as may be specified in thenotice being not less than seven days and but notexceeding thirty days from the date on which suchnotice is issued.” (Emphasis supplied) Therefore, the minimum time that should be given by theRevenue to the assessee to respond is seven days but themaximum period is thirty days. 13. Here in the case in hand, no doubt, already thepetitioners had given some reply, however, they sought forfurther time to give further reply, because, the reasons havebeen given by the Revenue as to how they come to a conclusionthat, there has been an escaped assessment which necessitatedor prompted the Revenue under Section 147 to reopen theassessment. 14. That additional information were furnished to theassessee only on 29th March 2022, therefore, it requiresatleast a minimum time of one week to respond. This one weekis part and parcel of whatever the proceedings issued undersub-section (b) of Section 148A of the Act. 15. Merely because already a notice was issued, thesubsequent notice or information furnished by the Revenue neednot be given a time of minimum one week to the assessee torespond, may be an extreme proposition, but that is notintended by the Legislature as the language used here is that,“not less than 7 days”, that means that 7 days is a must, butthe maximum of 30 days. Therefore, this Court has no hesitation to hold that, the impugned orders dated 30.03.2022and 31.03.2022 since have been passed without giving such oneweek minimum time as sought for by their communication dated29.03.2022 are infirm and therefore, they are liable to beinterfered with. 15. Merely because already a notice was issued, thesubsequent notice or information furnished by the Revenue neednot be given a time of minimum one week to the assessee torespond, may be an extreme proposition, but that is notintended by the Legislature as the language used here is that,“not less than 7 days”, that means that 7 days is a must, butthe maximum of 30 days. Therefore, this Court has no hesitation to hold that, the impugned orders dated 30.03.2022and 31.03.2022 since have been passed without giving such oneweek minimum time as sought for by their communication dated29.03.2022 are infirm and therefore, they are liable to beinterfered with. 16. In that view of the matter, this Court is inclined todispose of these writ petitions with the following orders:That the impugned orders are set aside and thematters are remitted back to the respondent forreconsideration. In this process, now it is open tothe petitioners to respond to the additionalinformation supplied by the Revenue dated 29.03.2022within one week period from the date of receipt of acopy of this order. On receipt of such reply withinthe one week time, it is open to the Revenue toexamine the same and decide as to whether noticeunder Section 148 shall be issued against thepetitioners assessees or not. Therefore, it isneedless to mention that, the earlier Section 148notice issued simultaneously along with the presentimpugned orders become otiose. 17. With these observations and directions, these WritPetitions are disposed of. No costs. Consequently, connectedmiscellaneous petitions are closed. //True Copy// Sd/- Assistant Registrar (CS-III) Sgl Sub Assistant Registrar To The Assistant Commissioner of Income Tax,Non Corp Circle 3(1), Wanaparthy Block,121, Mahatma Gandhi Road,Nungambakkam, Chennai – 600 034. +2ccs to M/s.Subbaraya Aiyar Padmanabhan, Advocate SR. No.27741, 27743+1cc to M/s. Hema Muralikrishnan, Advocate SR. No. 27861 W.P.Nos.9958 & 9994 of 2022 PL (CO)PR (14/07/2022)