Ibrahim Khan v. Order

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 23552/2018 Ibrahim Khan S/o Shri Haji Rasool Khan, Aged About 73 Years,Kasali, Vpo, Kasali, Sikar. ----Petitioner Versus 1. Income Tax Officer, Ward-1, Income Tax Office, Sikar.2. Income Tax Officer Ward 3(1), Jaipur, Room No. 221, 2NdFloor, New Central Revenue Building, Statue Circle, Jaipur.2. Income Tax Officer Ward 3(1), Jaipur, Room No. 221, 2NdFloor, New Central Revenue Building, Statue Circle, Jaipur. ----Respondents For Petitioner(s) : Mr.Gunjan Pathak with Mr.Kanishk Singhal & Mr.Aditya BohraSinghal & Mr.Aditya BohraFor Respondent(s): Mr.Sandeep Pathak HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE BHUWAN GOYAL Order 23/04/2024 -AVNEESH JHINGAN, J (ORAL): 1.This petition is filed seeking quashing of notice dated27.03.2018 issued under Section 148 of the Income Tax Act, 1961(for short ‘the Act’) and order dated 04.10.2018 rejecting theobjections filed against initiation of the proceedings under Section148 of the Act. 2.The brief facts are that the petitioner during the AssessmentYear (for brevity AY) 2011-12 sold an immovable property. As perthe department, the petitioner had not filed the Income TaxReturn disclosing the capital gain. 3.A notice dated 27.03.2018 was issued under Section 148 ofthe Act, service of which is disputed. On receipt of notice underSection 142 of the Act, in pursuance to the decision of the Supreme Court in Gkn Driveshafts (India) Ltd. vs. Income Tax Officer And Ors. reported in 259 ITR Page 19, thereasons sought by petitioner for reopening were supplied. 4.The petitioner objections dated 25.09.2018 filed by petitionerwere acknowledged by the department. One of the objectionsraised was that under Section 148 of the Act proceedings havebeen initiated without application of mind. It was not consideredthat the petitioner on 30.03.2012 had filed Income Tax Return forA.Y. 2011-12 and in the computation attached thereto, the capital gain on sale of the immovable property was duly reflected. 6.The objections were rejected on 04.10.2018. Para 3.5 of the order is quoted below:- ‘(3.5)-AO has not considered the saleconsideration declared by the assessee in hisITR, hence, proceeding is void and required tobe dropped. In the reasons, it is clearly mentioned thatthe assessee has not filed his ITR as suchverification of sale consideration disclosed bythe assessee was not possible at that time,however, the same may be considered duringassessment proceedings.’ 7.Heard learned counsel for the parties and perused thepleadings. 8.In Para 2 of the writ petition, the petitioned pleaded that theIncome Tax Return along-with the computation of income for theA.Y. 2011-12 was filed. In the reply filed, the respondents haveadmitted filing of the return but has contested that thecomputation was not attached. 9. In view of the reply filed, the findings recorded in Para 3.5by the Income Tax Officer cannot be sustained. Consequently, the impugned order dated 04.10.2018 is set aside and the matter isremitted back for deciding the objections afresh. 10.It is clarified that while deciding the objections, the officerconcerned shall not be influenced by the observations made in the impugned order and shall decide it in accordance with law. 11.In order to avoid any further delay, let the petitioner throughrepresentative appear in the office of respondent No.1 on03.05.2024 at 11:00 AM. (BHUWAN GOYAL),J (AVNEESH JHINGAN),J Monika/Sudeepak/45 Reportable Yes