Saroj Bhatia v. Principal Commissioner Of Income Tax & Anr

$~S-61 IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 12626/2022 & CM APPL.38255/2022 SAROJ BHATIA..... Petitioner Through:Mr.V.K.Sabharwal, Advocate withMr.R.B.Gupta, Advocate.Mr.R.B.Gupta, Advocate. versus PRINCIPAL COMMISSIONER OF INCOME TAX & ANR. ..... RespondentsThrough:Mr.Abhishek Maratha, Sr.StandingCounsel.%Date of Decision: 01[st]September, 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): C.M.APPL. 38256/2022 1.Exemption allowed, subject to all just exceptions. 2.Accordingly, the application stands disposed of W.P.(C) 12626/2022 & CM APPL.38255/2022 3.Present writ petition has been filed challenging the order passed underSection 148A(d) of the Income Tax Act, 1961 [‘the Act’] and the noticeissued under Section 148 of the Act both dated 30[th]July, 2022 for theAssessment Year 2015-16. 4.Learned counsel for the petitioner states that the impugned orderpassed under Section 148A(d) and the impugned notice issued under Section148 of the Act are without jurisdiction, as the income alleged to haveescaped assessment is Rs.34,44,855/-, which is less than the jurisdictionalrequirement of Rs.50 Lakhs. 5.He states that the Respondent has passed the impugned order withoutconsidering the detailed submissions of the Petitioner, wherein the Petitionerhad submitted that the Petitioner had already paid tax on the Short TermCapital gain (‘STCG’) of Rs. 995/- and that the Petitioner had only claimedLong Term Capital Gain (‘LTCG’) of Rs.33,74,855/- under Section 10(38)of the Act. 6.Learned counsel for the petitioner states that the finding of theAssessing Officer in the impugned order dated 30[th]July, 2022 passed underSection 148A(d) of the Act that an income of Rs.50,10,500/- has escapedassessment is factually incorrect. He states that Section 148A(d) of the Actonly talks of escapement of Income on the basis of material available onrecord and not on material to be available in future. He points out that thematerial available suggested that an income of Rs.34,44,855/- has escapedassessment. In support of his submission, he relies upon the judgment of theRajasthan High Court in Abdul Majeed vs. Income Tax Officer, Ward 1,D.B. Civil Writ Petition No.7853/2022/ 7.This Court finds that in the impugned order passed under Section148A(d) it is stated that the petitioner had sold penny stock i.e. M/s SolisMarketing Ltd. for a consideration of Rs.50,10,500/-. The impugned orderfurther states that the petitioner did not furnish the Demat Account Statements or respond to the case on merits of case in his reply to the showcause notice. 8.This Court takes judicial notice of the fact that in the case of anotherassessee in W.P.(C) No.12532/2022 who had similarly purchased the stockof M/s. Solis Marketing Ltd., the revenue department has alleged that theassessee therein had earned long term capital gain which was almost forty-five times the investment within a short span of time. In this case as well, aperusal of the petitioner’s reply dated 29[th]May, 2022 evidences that theshares purchased at face value of Rs.1 were sold at approx. Rs.50 per shareearning the petitioner the LTCG which were admittedly claimed as exemptincome. The Assessing Officer in the impugned order has also held that ‘theassessee is one of the beneficiary of generating bogus LTCG & STCGthrough M/s Solis Marketing Ltd. in planned manner and has routed herunaccounted income. Hence, the total consideration of Rs.50,10,500/- hasescaped assessment’. In fact, in the impugned order, it has been repeatedlyemphasised by the Assessing Officer that the entire consideration ofRs.50,10,500/- received by the petitioner is income that has escapedassessment. 9.Consequently, neither the bifurcation between the STCG and LTCGnor the calculation of income furnished by the petitioner can be accepted atthis stage in writ proceedings. The judgment of the Rajasthan High Court inAbdul Majeed (supra) has no application to the facts of the present case asin the said case ‘only cash deposit of Rs.9,39,000/- chargeable to tax hadescaped assessment, without anything more....’ 10.Accordingly, this Court is of the view that the impugned order callsfor no interference at this stage. However, the petitioner is given liberty to raise all contentions and submissions before the Assessing Officer. With theaforesaid liberty, the present writ petition along with pending applicationsstands disposed of. MANMOHAN, J SEPTEMBER 1, 2022TS MANMEET PRITAM SINGH ARORA, J