M/S. Jain Sewa Bahuuddeshiya Samiti, Yashodham v. Income Tax Officer, Ward-1, Khamgaon & Another

IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR Writ Petition 4124 of 2022 M/s. Jain Sewa Bahuuddeshiya Samiti, Yashodham vs. Income Tax Officer, Ward-1, Khamgaon & another =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=Office notes, Office Memoranda ofCoram, appearances, Court's orders Court’s or Judge’s Orders or directions and Registrar’s orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr. Saket Bhattad, Advocate for the Petitioner.Mr. Anand Parchure, Advocate for the Respondents. CORAM:ROHIT B. DEO AND Y.G. KHOBRAGADE, J J. DATE :19th JANUARY, 2023. The petitioner is assailing the notice issued underclause (b) of section 148A of the Income Tax Act, 1961(hereinafter referred to as ‘Act’ for short) and the orderrendered in exercise of powers under clause (d) of section148A of the Act. 02]The finding, which is recorded by the assessingauthority, is that income to the tune of Rs.74,73,800/-(Rupees Seventy Four Lakhs Seventy Three Thousand EightHundred Only), which is taxable, has escaped assessment inthe assessment year 2015-16. 03]We note that the consequence of the findingsrecorded in the order impugned is that, the assessee shall berequired to pay tax on the amount, which according to theassessing authority, has escaped assessment. It is not that theassessee is without remedy. The Act envisages hierarchy ofappeals. 04]However, writ jurisdiction is invoked by theassessee on the ground that the order passed under section148A(d) of the Act is passed in breach of principles of naturaljustice. The submission is on the premise that the notice dated23/03/2022 was received by the assessee by post on31/03/2022 and the order under clause (d) of section 148A ofthe Act came to be passed on the same date without givingany opportunity, whatsoever, to the assessee to show cause. 05]The respondents have filed affidavit in responsedated 22/08/2022 asserting that the averment that theassessee received the notice only on 31/03/2022 at 1:45 p.m.,is incorrect. The respondents have categorically stated thatthe notice dated 23/03/2022 was sent, and was duly servedon the assessee on the email address. We may extractparagraph 4 of the affidavit in response, which reads thus : “4. It is submitted that the petitioner is an assesseehaving PAN and had not filed the Returnsfor the assessment year 2015-16. The insight portalflagged of the information vide insight instruction 97through its Secretary dated 28/02/2022 and the case wasselected by the ITBA and as per the assessmentinstruction 22 dated 07/02/2022 notice under section148A(d) of the Income Tax Act was issued with priorapproval of the Principal Chief Commissioner of IncomeTax, Nagpur vide letter dated 22/03/2022 and therefore,the notice was issued to the assessee on 23/03/2022,which was duly served on the assessee through was delivered on thepetitioner-assessee on 07:18:01 PM on 23/03/2022. Thesaid notice is also sent by speed-post. After giving sevendays time to the petitioner-assessee under section148A(d) of the Act, orders were passed on 31/03/2022with prior approval of the Principal CCIT, Nagpur andconsequently, notice was issued under section 148 on31/03/2022 with prior approval of PCCIT.” 06]The averments on oath, which were extracted,have not been rebutted by the petitioner and we see nodifficulty in accepting the veracity thereof. In this view of thematter, the submission that the notice and the subsequentorder falls foul of the principles of natural justice must berejected. 06]The averments on oath, which were extracted,have not been rebutted by the petitioner and we see nodifficulty in accepting the veracity thereof. In this view of thematter, the submission that the notice and the subsequentorder falls foul of the principles of natural justice must berejected. 07]The next submission is that the premise, on whichthe notice is issued, is unfounded and contrary to the recordmaintained by the petitioner-society. It is submitted that theallegation that the petitioner deposited Rs.15,0000/- as timedeposit, and amount of Rs.59,73,800/- with Khamgaon UrbanCooperative Bank in the year 2014-15 is incorrect inasmuch asthe petitioner has no bank account with the said bank. We areafraid that in writ jurisdiction, it would not be permissible forus to consider the said contention, which the petitioner has notraised before the assessing authority. We have already noticedsupra, that if any illegal or unjust demand of tax is made, theremedy of the assessee lies elsewhere and not by directlyinvoking the writ jurisdiction. 08]The petition is dismissed. We, however, clarifythat we have not examined the merits of the matter and weleave it for the appropriate authority at an appropriate stage toexamine the contention of the petitioner on merits. JUDGE JUDGE