Sheetal Gupta v. Income Tax Officer, Ward 6(4), Jaipur, Having Office Atnew Central Revenue Building, Bhagwan Das Road, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 9327/2023 Sheetal Gupta, W/o Vipul Gupta, Aged About 43 Years, ResidentOf 13/12A, Malviya Nagar, Jaipur - 302017, Rajasthan, India ----Petitioner Versus 1. Income Tax Officer, Ward 6(4), Jaipur, Having Office AtNew Central Revenue Building, Bhagwan Das Road, Jaipur- 302005, Rajasthan, IndiaNew Central Revenue Building, Bhagwan Das Road, Jaipur- 302005, Rajasthan, India 2. Additional Director Of Income Tax, Investigation, Ajmer,Having Office At Aayakar Bhawan, Near Bus Stand, JaipurRoad, Ajmer - 305001, Rajasthan IndiaHaving Office At Aayakar Bhawan, Near Bus Stand, JaipurRoad, Ajmer - 305001, Rajasthan India 3. Central Board Of Direct Taxes (CBDT), RepresentedThrough Its Chairman Having Office At Ministry OfFinance, North Block, New Delhi - 110011, Delhi, IndiaThrough Its Chairman Having Office At Ministry OfFinance, North Block, New Delhi - 110011, Delhi, India ----Respondents For Petitioner(s) : Mr. Prateek Kedawat, Advocate with Mr. Prateek Barla, Advocate For Respondent(s): Mr. Sandeep Pathak, Advocate through VC with Mr. Arnav Singh, AdvocateVC with Mr. Arnav Singh, Advocate HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Judgment / Order 14/07/2023 Heard on admission. This petition under Article 226 of the Constitution of India isdirected against the order dated 05.04.2023 issued under Section148A(d) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Actof 1961’) as also notice dated 05.04.2023 issued under Section 148 ofthe Act of 1961 for the Assessment Year 2016-17. Learned counsel for the petitioner argued that the assessment incase of the petitioner has been reopened on the basis of a third party information without having clinching material on record and evenwithout allowing the petitioner to cross-examine the person concernedfrom whom such information was received and whose statement wasrecorded during investigation forming the basis for opening assessment.He would also submit that based on unverified and suspicious materialwithout proper investigations and inquiry, the power under Section148A(d) of the Act of 1961 has been exercised and re-assessmentproceedings have been initiated. The correctness of the factualstatements made in the impugned order have also been challenged. We find that a notice under Section 148A(b) of the Act of 1961was issued to the petitioner on 23.03.2023 by the Assessing Officeralong with annexures disclosing information suggesting that incomechargeable to tax for the Assessment Year 2016-17 has escapedassessment. The petitioner was required to show cause as to why, inview of details contained in the enclosures, notice under Section 148 ofthe Act of 1961 should not be issued. The annexure enclosed statedthat as per information available on insight portal, assessee madefinancial transactions (sale of shares) of Rs.89,17,010/- and receivedinterest of Rs.3,35,874/- on which TDS deducted under Section 194-Aof the Act of 1961 during the financial year 2015-16 relating toAssessment Year 2016-17. The description disclosed that sale of equityshare (settled by the actual delivery or transfer) in a recognized stockexchange amounting to Rs.89,17,010/-, received interest ofRs.3,35,874/- on which TDS deducted under Section 194-A of the Act of1961 were disclosed. Referring to background, management, financialperformance and balance sheet particulars of Sanasa Techfeb Limited,the notice stated that the company has neither the meaningful tangibleassets nor any substantial investments and profit and loss account for the stated financial year shows miniscule profits. According to theAssessing Officer, the said details show that the manipulation weremade by the clients and the brokerage firms for personal gains. Thecompany has neither paid any dividend to the share holders nor anybonus has been announced. The trade data of the said company wasalso called from the Bombay Stock Exchange and details were collected.The information was also disclosed by the ADIT (Investigation) Ajmer,wherein, it was stated that M/s. Sanasa Techfeb Limited is a pennystock company, hence, the trading done and the profit earned on thesale of the shares of this company were bogus and designed tocamouflage undisclosed income of various persons including assesseeas capital gain from sale of shares. The petitioner gave a reply, wherein, all the allegations weredenied. According to the petitioner, it has not indulged in any boguscapital gain and raised issue that shares of Sanasa Techfeb Limited werelisted on SME Portal of BSE which is separate from BSE main Portal. Theassessee disputed the factual contents of the report prepared by ADIT(Investigation) Ajmer which was made basis to initiate proceedingsunder Section 148A(d) of the Act. The Assessing Officer vide order dated 05.04.2023 passed adetailed order, after taking into consideration the reply filed by thepetitioner to arrive at conclusion based on consideration of material onrecord that the assessee is one of those who purchased shares fromSanasa Techfeb Limited and upon verification of the ITR filed by theassessee and perusal of computation it is revealed that assesseeclaimed exempt income of Rs.84,71,308/- under Long Term Capital Gainon which STT paid, hence, the entire transaction remainedunexplained/unverified. On that basis, order was passed highlighting need to verify those transactions. This follows issuance of notice underSection 148 of the Act of 1961. The assessee did not challenge the said order but chose to file itsreturn in response to notice under Section 148 of the Act of 1961.During the pendency of the assessment proceedings, the assessee hasfiled this writ petition. Though, number of grounds have been urged by the assessee toassail the correctness of order dated 05.04.2023 under Section 148A(d)of the Act of 1961, we find that the order has been passed after givingdue opportunity of hearing to the petitioner. The order is detailed one. Itcontains examination of various facts, correctness of which have beendisputed by the petitioner. The correctness of those factual aspectscannot be gone into in the writ petition. The petitioner has filed petitionafter submitting return pursuant to notice under Section 148 of the Actof 1961. In the absence of there being any improprietory in the decisionmaking process and further taking into consideration that the petitionwas filed after submitting return of income and during the pendency ofthe assessment proceedings and further that no addition has beenmade but it is a case of reopening of assessment and the assesseewould have full opportunity to satisfy the Assessing Officer against anyaddition, we are not inclined to admit the petition. The petition is, therefore, dismissed. (PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J