Shri Shyam Sundar Dhanuka v. Before

ORDER SHEETWPO/929/2023IN THE HIGH COURT AT CALCUTTACONSTITUTIONAL WRIT JURISDICTIONORIGINAL SIDE SHRI SHYAM SUNDAR DHANUKA VS OFFICE OF THE INCOME TAX OFFICER WARD 8(1), KOLKATA AND ORS. BEFORE: The Hon'ble JUSTICE MD. NIZAMUDDIN Date: 8[th] May, 2023. Appearance:Mr. Saurabh Bagaria, Adv.Mr. Saumya Kejriwal, Adv.Ms. Ananya Rath, Adv.Mr. Gauri Shankar Gupta, Adv.…For the PetitionerMr. Tilok Mitra, Adv.Mr. Amit Sharma, Adv.…For the Respondents The Court: Heard learned advocates appearing for the parties.By this writ petition, petitioner has challenged the legality of theimpugned order under Section 148A(d) of the Income Tax Act, 1961 dated7[th] April, 2023 relating to assessment year 2016-17. Main allegation of thepetitioner in challenging the impugned order while passing the aforesaidimpugned order the assessing officer has relied on some investigation reportfrom the office of the DGIT (Investigation) where some remarks was made as“potential borrower/lender” and it is the case of the petitioner thatimpugned proceeding on the basis of the alleged remarks of “potentialborrower/lender” without naming or disclosing anything in detail againstthe petitioner, is legally not sustainable. I have perused the aforesaid impugned order and I find that suchallegation of learned advocate appearing for the petitioner that the assessing officer has proceeded merely on the basis of remarks “potentialborrower/lender” is not correct since in the later part of the order assessingofficer has clarified that on verification of the document the assessing officerhas found credible evidence of actual borrowings and not potential innature. It has also been recorded by the assessing officer in the impugnedassessment order that it is evident that the assessee has availed cash loanto the tune of Rs. 40,70,00,000/- through finance broker named Kaserasfrom different lenders namely Uma Shankar Kasera and it has also beenrecorded that there is a huge unexplained expenditure within the meaningof Section 69C of the Act and that the cash loan and repayment in cashcomes within the crux of provision 269SS and 269T and other relevantprovisions of penalty under the aforesaid Act. I find on perusal of theaforesaid impugned order under Section 148A(d) of the Act that the same isbased on huge materials and evidence regarding the alleged transaction andthat Court in exercise of Constitutional Writ Jurisdiction cannot act as anassessing officer and scrutinize those facts and evidence and substitute thesame with its own. I find that aforesaid impugned order is neither a non-speaking order nor any violation of principles of natural justice nor anyprocedural irregularity has been committed during the proceeding nor theimpugned order has been passed by an officer having inherent lack ofjurisdiction which is based on facts and findings and materials evidence.The aforesaid factors should not be ignored. In addition the order underSection 148A(d) of the Act is neither a final assessment order nor anydemand arises out of such order and petitioner still will have ample opportunity and scope to make out a case in its favour in proceedingsubsequent to the order passed under Section 148A(d) of the Act. In view of the discussion made above, this writ petition being WPO929 of 2023 stands disposed of. It appears from record that this writ petition has been affirmed by one Ravi Kumar Agarwal describing himself as a businessman residing at 69,S.K. Deb Road, Jyotimill, Lake Town, SreeBhumi, Kolkata-700048 at Ujaason behalf of the petitioner who is the resident of 29, Ballygunge Park,Kolkata-700019 by virtue of being a constituted attorney of the petitionerthough the deponent is neither an employee of the petitioner nor related tothe petitioner in any manner. opportunity and scope to make out a case in its favour in proceedingsubsequent to the order passed under Section 148A(d) of the Act. In view of the discussion made above, this writ petition being WPO929 of 2023 stands disposed of. It appears from record that this writ petition has been affirmed by one Ravi Kumar Agarwal describing himself as a businessman residing at 69,S.K. Deb Road, Jyotimill, Lake Town, SreeBhumi, Kolkata-700048 at Ujaason behalf of the petitioner who is the resident of 29, Ballygunge Park,Kolkata-700019 by virtue of being a constituted attorney of the petitionerthough the deponent is neither an employee of the petitioner nor related tothe petitioner in any manner. Mr. Bagaria representing the petitioner shall provide a copy of the pancard to Mr. Tilok Mitra appearing for the respondent Income Tax Authorityand the department will enquire about the business activity of thisdeponent, Ravi Kumar Agarwal and verify from his return about the natureof business and transaction this deponent dealt with and the assessingofficer concerned shall file a report to this Court on 18[th] May, 2023 whenthis matter will come up as ‘To Be Mentioned’. (MD. NIZAMUDDIN, J.) TR/