Realization Stock & Equity Pvt. Ltd v. Income Tax Officer, Ward

28.03.2022. p.b.Sl. No.25. W.P.A. 5273 of 2022 Realization Stock & Equity Pvt. Ltd. Vs.Income Tax Officer, Ward No.4 (1),Kolkata & Ors. Mr. Avra Mazumder,Mr. B. Gupta,Mr. Sk. Md. Bilwal Hossain,Mr. K. Ray. ……..for the petitioner. Mr. P. Dudharia. …….for the respondents. In this matter, petitioner has challenged theimpugned notice dated 31[st] March, 2021 under Section148 of the Income Tax Act, 1961 relating to theassessment year 2017-18 and subsequent notice dated14[th] January, 2022 issued under Section 142 (1) of theIncome Tax Act on the ground that the impugned noticeunder Section 148 and subsequent proceeding is bad andnot sustainable in law for the reason that the same hasbeen issued in total non-application of mind. Learned advocate appearing for the petitioner tosubstantiate its aforesaid allegation has placed therecorded reason which appears at page 51 of the writpetition and which is the basis of issuance of the aforesaidimpugned notice under Section 148 of the Act and onperusal of the same, I find in first paragraph that one of the reasons for reopening of assessment is that no regularassessment under Section 143 (3) of the Act was made inthe instant case and even in the last paragraph of the saidreason again it has been recorded again that noassessment order as per Section 2 (40) of the Act wasmade in the instant case which is totally incorrect andcontrary to the respondent’s own record from where itappears that the regular assessment under Section 143 (3)of the Act was passed on 10[th] December, 2019 beingAnnexure P-10 to the writ petition. It also appears fromrecord annexed to the writ petition that the aforesaidpatent mistake of recording that no regular assessmentwas made in this writ petition was brought to the notice ofthe assessing officer concerned on 23[rd] December, 2021 byfiling objection against the aforesaid impugned notice andthe assessing officer concerned instead of considering anddisposing of the said objection dated 23[rd] December, 2021,has issued another notice under Section 142 (1) of the Acton 14[th] January, 2022. Though this Court in exercise ofConstitutional Writ Jurisdiction under Article 226 of theConstitution of India is very reluctant to interfere with thesufficiency of the findings and reasonings of the recordedreason for the purpose of reopening of any assessment butsince it is a case of patent non-application of mind by theassessing officer concerned as appears from the reasonrecorded by him repeatedly recording that no regular assessment was made in the instant case which is totallyincorrect and contrary to respondent’s own record andwhich is the basis of the reopening of assessment, theimpugned notice under Section 148 of the Income Tax Actand all subsequent proceedings are quashed. However,quashing of the impugned notice and subsequentproceeding will not prevent the assessing officer concernedto initiate any fresh proceeding in future in accordancewith law. This writ petition being WPA No.5273 of 2022 standsdisposed of accordingly without calling for any affidavitsfrom the respondents since it will not improve theadmitted factual position which appears from record ofthis case. (Md. Nizamuddin, J.)