Neutral Citation No: 2022/Dhc/002113 v. Income Tax Officer Ward 49(1), Delhi

$~7 *IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 7854/2022 & CM APPLs.23968-23969/2022MEENU CHAUFLA..... PetitionerThrough:Mr.Divyanshu Agrawal, Advocatewith Ms.Ritika Chawla andMr.Vaibhav Niti, Advocates. versus INCOME TAX OFFICER WARD 49(1), DELHI..... RespondentThrough:Mr.Ajit Sharma, Advocate. %Date of Decision: 27[th]May, 2022 CORAM: HON'BLE MR. JUSTICE MANMOHANHON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA J U D G M E N T MANMOHAN, J (Oral): 1.Present writ petition has been filed challenging the Order dated 30[th]March, 2022 passed under Section 148A(d) of the Income Tax Act, 1961(hereinafter referred to as ‘the Act’) by Respondent and notice dated 31[st]March, 2022 issued under Section 148 of the Act for the assessment year2018-19. 2.Learned Counsel for the Petitioner states that a Show Cause Noticeunder Section 148A(b) of the Act was issued to the Petitioner on 17[th]March,2022 and the Petitioner was directed to file its reply by 24[th]March, 2022. Hestates that an application for adjournment was filed by the petitioner on 18[th] W.P.(C) No.7854/2022 Page 1 of 3 March, 2022 requesting the Respondent to grant time till 27[th]March, 2022for filing the submission in response to the aforesaid notice. He states thatsubmission was filed on 27[th]March, 2022 by way of email, as the onlinesubmission portal was closed by the Respondent on 24[th]March, 2022. 3.Issue notice. Mr.Ajit Sharma, learned counsel for the respondent,accepts notice. He states that the Assessing Officer was within his right toclose the online portal, as the petitioner had been granted only seven days’time to file a response to the notice issued under Section 148A(b) of the Actdated 27[th]March, 2022. He further states that just because an adjournmentapplication had been filed, the petitioner could not have presumed that theadjournment would be allowed. 4.Having heard learned counsel for the parties, this Court is of the viewthat the petitioner/assessee has the right to get adequate time in accordancewith the Act to submit its reply. It is pertinent to mention that Section148A(b) permits the Assessing Officer to suo moto provide up to thirtydays’ period to an assessee to respond to the show cause notice issued underSection 148A(b), which period may in fact be further extended upon anapplication made by the Assessee in this behalf, and such period given tothe petitioner-assessee is excluded in computing the period of limitation forissuance of notice under Section 148A(d) of the Act in terms of the thirdproviso to Section 149 of the Act. 5.In the present case, though the petitioner had filed an application foradjournment immediately after receipt of notice dated 17[th]March, 2022, therespondent had neither rejected the request for adjournment nor directed thepetitioner to file a reply within the original stipulated time. W.P.(C) No.7854/2022 6.In the present case, the petitioner had filed its response/submission on27[th]March, 2022 by way of an email addressed to the Assessing Officer asthe notice under Section 148A(b) had been received from the said emailaddress. 7.Further, as the impugned order under Section 148A(d) of the Act hadbeen passed after receipt of the said email, this Court is of the view thatAssessing Officer should have considered the same as the reply wasavailable on record. By not considering the reply of the Petitioner dated 27[th]March, 2022, the mandate of Section 148A(c) has been violated as it casts aduty on the Assessing Officer, by using the expression ‘shall’, to considerthe reply of the Petitioner/assessee in response to notice under Section148A(b) before making an order under Section 148A(d) of the Act. 6.In the present case, the petitioner had filed its response/submission on27[th]March, 2022 by way of an email addressed to the Assessing Officer asthe notice under Section 148A(b) had been received from the said emailaddress. 7.Further, as the impugned order under Section 148A(d) of the Act hadbeen passed after receipt of the said email, this Court is of the view thatAssessing Officer should have considered the same as the reply wasavailable on record. By not considering the reply of the Petitioner dated 27[th]March, 2022, the mandate of Section 148A(c) has been violated as it casts aduty on the Assessing Officer, by using the expression ‘shall’, to considerthe reply of the Petitioner/assessee in response to notice under Section148A(b) before making an order under Section 148A(d) of the Act. 8.Consequently, the impugned order dated 30[th]March, 2022 issuedunder Section 148A(d) of the Act and the notice dated 31[st]March, 2022issued under Section 148 of the Act are set aside. The respondent is directedto take the submission filed on 27[th]March, 2022 on record and pass areasoned order in accordance with law within eight weeks. This Courtclarifies that it has not commented on the merits of the controversy. Therights and contentions of all the parties are left open. 9.With the aforesaid direction, the present writ petition along withpending applications stands disposed of. MANMOHAN, J MAY 27, 2022TS MANMEET PRITAM SINGH ARORA, J