Services (I.) Pvt. Ltd v. Deputy Commissioner Ofincome Tax Circle 4(2), Delhi

$~11 *IN THE HIGH COURT OF DELHI AT NEW DELHI +W.P.(C) 12654/2022 & CM APPL. 38423/2022 (stay) BIRD WORLDWIDE FLIGHT SERVICES (I.) PVT. LTD. ..... PetitionerThrough:`Mr.MayankNagi&Mr.PulkitVerma, Advocates. versus DEPUTY COMMISSIONER OFINCOME TAX CIRCLE 4(2), DELHI ..... Respondent Through:Mr.KunalSharma,Sr.StandingCounsel for Revenue with Ms. ZehraKhan, Jr. Standing Counsel & Mr.Sandeep Kumar Advocate. % Date of Decision: 02[nd]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): 1.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 29[th]July, 2022 for theAssessment Year (‘AY’) 2017-18. 2.Learned Counsel for the Petitioner states that in the present case theinitial notice under 148A(b) of the Act was issued on 18[th]May, 2022. Hestates that the Petitioner asked for the material relied upon vide letter dated01[st]June, 2022. He, however, states that the material forming the basis ofallegation of escapement of income was served on the Petitioner only on 19[th]July, 2022 with a direction to respond by 21[st]July, 2022. 3.He submits that in the judgment of Union of India Vs. AshishAgarwal, 2022 SCC OnLine SC 543, it was stipulated that a period of twoweeks would be granted to the Assessee to file the response under Section148A(b) of the Act and the same shall be reckoned from the date on whichthe 'Information' and the 'Material' forming the basis of purported action, isserved on the Assessee. He states that though the Petitioner filed for anadjournment on 21[st]July, 2022 for additional ten days, yet the reply wasfiled within the additional time on 26[th]July, 2022. He contends that thesame was not taken into account while passing the impugned order dated29[th]July, 2022. Consequently, according to the learned counsel for thePetitioner, there has been a violation of the principles of natural justice. 4.Issue notice. Mr. Kunal Sharma, learned Sr. Standing Counsel for theRevenue, accepts notice. 5.Having perused the paper book, this Court is of the view that thePetitioner has a right to get adequate time under Section 148A of the Act torespond to the show cause notice. It is pertinent to mention that Section148A(b) of the Act permits the Assessing Officer to suo moto provide up tothirty days' period to an assessee to respond to the show cause notice issuedunder Section 148A(b) of the Act, which period may in fact be furtherextended upon an application made by the Assessee in this behalf. 6.This Court in Meenu Chaufla Vs. ITO, WP(C) No. 7854 of2022 dated 27[th]May 2022, has held that in such cases the mandate ofSection 148A(c) is violated as it casts a duty on the AO, by using theexpression ‘shall’, to consider the reply of the Assessee in response to noticeunder Section 148A(b), before making an order under Section 148A(d) ofthe Act. 7.Consequently, the impugned order and the notice under Section 148of the Act, both dated 29[th]July, 2022 for the AY 2017-18 are set aside andthe matter is remanded back to the AO for a fresh decision after consideringthe reply dated 26[th]July, 2022 filed by the Petitioner within four (04) weeks.8.With the aforesaid directions, the present writ petition along with thepending application stands disposed of. 9.It is clarified that the rights and contentions of all the parties are leftopen. MANMOHAN, J SEPTEMBER 02, 2022/msh MANMEET PRITAM SINGH ARORA, J