Ramchandra Choudhary Son Of Shri Bhura Ram Choudhary v. Income Tax Officer, Ward 7(2), Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 18229/2023 Ramchandra Choudhary Son Of Shri Bhura Ram Choudhary,Aged About 63 Years, Resident Of Near Petrol Pump, Bhankrota,Ajmer Road, Jaipur 302026 ----Petitioner Versus Income Tax Officer, Ward 7(2), Jaipur Having Its Address AtSidhnath Bhawan, Jyoti Nagar Scheme, Lal Kothi Scheme,Behind New Vidhansabha, Janpath, Jaipur 302015 ----Respondent For Petitioner(s) : Ms. Apeksha Bapna Advocate on behalf of Mr. Siddharth Ranka Advocate. For Respondent(s): Mr. Anuroop Singhi Advocate with Mr. N.S. Bhati Advocate.Mr. Sandeep Pathak Advocate. HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MRS. JUSTICE SHUBHA MEHTA Order 22/11/2023 1.Heard on admission. 2.Learned counsel for the petitioner would argue that initiationof proceedings under Section 148A(b) of the Income Tax Act, 1961(hereinafter referred to as ‘the Act of 1961’), order dated30.03.2023 passed under Section 148A(d) of the Act of 1961 asalso notice under Section 148 of the Act of 1961 issued on30.03.2023, re-opening assessment in relation to assessment year2016-17 is illegal, arbitrary, violative of principles of naturaljustice as also against statutory provisions contained in Section282 of the Act of 1961 read with Rule 127 of the Income Tax Rules, 1962. It is submitted that Notification No.04/2017 dated03.04.2017 issued by the Central Board of Direct Taxes has alsobeen violated. When the petitioner received notice under Section148 of the Act of 1961 on his registered main address, he came toknow about the proceedings initiated under Section 148A andorder passed thereunder. The petitioner submitted a detailedapplication for rectification of mistake under Section 154 of theAct of 1961. In the application, it was highlighted that properenquiry has not been conducted. It was also stated therein thatpetitioner had purchased an immovable property for a total saleconsideration of Rs.42,27,554/- and copy of sale deed was alsoannexed. But there was no due consideration of the applicationand vide order dated 06.09.2023 that application has also beenrejected. The proceedings could not have been initiated by theJurisdictional Assessing Officer but only by the Assessing Officeras per Notification dated 29.03.2022 issued by the Central Boardof Direct Taxes. Therefore, it is in violation of provisions containedin Section 151A of the Act of 1961. It is also the submission thatas per the Notification dated 29.03.2022, the Assessment Unitwas required to assign the same to NFAC and the impugned Noticeunder Section 148 could not have been issued by the respondent-authority and for that reason, the notices are in violation ofprovisions contained in Section 144B of the Act of 1961. Noreason has been assigned as to why no enquiry proceedings wereinitiated by the Assessing Officer under Section 148A(a) of the Actof 1961 prior to issuance of Notice under Section 148A(b) of theAct of 1961. 3.We have considered the submission of learned counsel forthe petitioner. 3.We have considered the submission of learned counsel forthe petitioner. 4.A notice under Section 148A(b) of the Act of 1961 wasissued to the petitioner on 21.03.2023 on the basis of informationwhich suggested that income chargeable to tax for theAssessment Year 2016-17 has escaped assessment. This wasbased on an information with regard to transaction of purchases ofa residential immovable property of the value of Rs.84,55,108/-.The assessee while filing his return of income on 05.08.2016 haddeclared total income of Rs.3,36, 670/-. A perusal of order dated30.03.2023 passed under Section 148A(d) of the Act of 1961shows that it was recorded therein that even though assessee wasrequired to furnish reply on or before 28.03.2023, but no replyhas been furnished. This followed issuance of notice under Section148 of the Act of 1961 on 30.03.2023. However, the petitioner didnot challenge issuance of notice under Section 148A(b) of the Actof 1961, nor did challenge the order dated 30.03.2023 passedunder Section 148A(d) of the Act of 1961, nor did challenge noticeunder Section 148 issued on 30.03.2023. Even according to thepetitioner, notice under Section 148 of the Act of 1961 wasreceived by him. If the petitioner had any such grievance that thenotice and order passed earlier have not been served, it couldhave challenged the same. As late as on 08.06.2023, thepetitioner filed a rectification application under Section 154 of theAct of 1961 wherein, he states that show cause notice underSection 148A(b) of the Act of 1961 was issued on 21.03.2023. Inthat application, there is no whisper that either notice dated21.03.2023 or subsequent order passed under Section 148A(d) on 30.03.2023, was not served on him. All that has been stated isthat proper enquiry has not been conducted with respect to theinformation. Petitioner sought to justify that his investmenttowards purchase was only 50%, i.e., Rs.42,27,554/-. It is, thus,clear that the ground raised in this petition that the petitioner wasnot served with notice dated 21.03.2023 under Section 148A(b)and subsequent order dated 30.03.2023 passed under Section148A(d) is an afterthought. The rectification application wasrejected vide order dated 06.09.2023. It has been stated in thatorder that even though assessee was provided sufficient time, hedid not avail the same. He did not file anyexplanation/documentary evidence with regard to the informationcommunicated to him which led to passing of an order underSection 148A(d) of the Act of 1961 after due approval of theCompetent Authority. It has also been stated therein that the caseof the assessee is pending before the Faceless Assessment Unitwith NaFAC to finalize the assessment in the faceless manner afternecessary enquiries. It is not the case of the petitioner that theincome invested in purchasing immovable property was disclosedwhile filing return of income. Even according to the petitioner,Rs.42,27,554/- was paid. The petitioner filed income tax return forthe concerned assessment year declaring his total income onlyRs.3,36, 670/-. 5.Reliance placed on the judgment of the Division Bench of thisCourt, at Jodhpur in the case of Rajhans Processors Union ofIndia & Others, D.B. Civil Writ Petition No.16985/2021,decided on 08.02.2023, does not come to the aid of the petitioneras in the present case, the facts are different. In the said case, there was an admission on the part of the authority that in itsorder, there is no material on record on the basis of which, theA.O. would form a bonafide belief that income of the assessee hasescaped assessment for the concerned Assessment Year. In thepresent case, facts are different. 6. In view of the above consideration, no case is made out forissuance of notice. 7. Therefore, the petition is dismissed in limine. 5.Reliance placed on the judgment of the Division Bench of thisCourt, at Jodhpur in the case of Rajhans Processors Union ofIndia & Others, D.B. Civil Writ Petition No.16985/2021,decided on 08.02.2023, does not come to the aid of the petitioneras in the present case, the facts are different. In the said case, there was an admission on the part of the authority that in itsorder, there is no material on record on the basis of which, theA.O. would form a bonafide belief that income of the assessee hasescaped assessment for the concerned Assessment Year. In thepresent case, facts are different. 6. In view of the above consideration, no case is made out forissuance of notice. 7. Therefore, the petition is dismissed in limine. 8. It is, however, made clear that it will be open for the petitionerto raise all the grounds available to him under the law in the re-assessment proceedings against any addition proposed. (SHUBHA MEHTA),J(MANINDRA MOHAN SHRIVASTAVA),ACTING CJ SANJAY KUMAWAT-52