The Income Tax Officer,Ward v. Ghuge &Y.g. Khobragade, Jj.date :18[Th] July, 2023

59wp8372-23 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 8372 OF 2023 Raju s/o Bhikulal YadavAge: 52 years, Occ.: Business & Agri., R/o. Tanmay Plaza, Pundlikwadi, Nanded Tq. & Dist. Nanded(Maharashtra State)PAN No. ...PETITIONER V/s. 1.The Principal Chief Commissioner Income Tax, Pune. 2.The Income Tax Officer,Ward-1, NandedTq. & Dist. Nanded. ... RESPONDENTS ... Mr. Raviraj R. Chandak, Advocate for the PetitionerMr. Alok Sharma, Advocate for R/1 & 2 … CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.DATE :18[th] July, 2023 ORAL JUDGMENT (Per: Ravindra V. Ghuge, J.) :- 1.Rule. Rule made returnable forthwith and heard finally by the consent of the parties. 2.The short issue involved in this case is as to whether the Income Tax Department can refuse to look into a reply which is tendered belatedly, to a notice under Section 148-A (b) of the Income Tax Act. 59wp8372-23 3. The petitioner has put forth prayer clauses (C), (D) and(E) as under: (C) By issuing appropriate writ or direction like in nature the impugnednotice dated 24/03/2023 U/Section 148-A(b) of Income Tax Act andorder dated 11/04/2023 passed under U/Section 148-A(d) of IncomeTax Act and consequential notice dated 11/04/2023 issued U/Section148 of Income Tax Act, by the respondent no.2 for the assessment year2016-17 may kindly quash and set aside.notice dated 24/03/2023 U/Section 148-A(b) of Income Tax Act andorder dated 11/04/2023 passed under U/Section 148-A(d) of IncomeTax Act and consequential notice dated 11/04/2023 issued U/Section148 of Income Tax Act, by the respondent no.2 for the assessment year2016-17 may kindly quash and set aside. (D) To hold and declare that, show cause notice dated 24/03/2023U/Section 148-A(b) of Income Tax Act and impugned notice dated11/04/2023 passed under U/Section 148 of Income Tax Act is timebarred in view of statutory impediment as contemplated U/section149(1)(b) of the Income Tax Act and therefore, initiation of reopeningproceeding for the assessment year 2016-17 is without jurisdiction.U/Section 148-A(b) of Income Tax Act and impugned notice dated11/04/2023 passed under U/Section 148 of Income Tax Act is timebarred in view of statutory impediment as contemplated U/section149(1)(b) of the Income Tax Act and therefore, initiation of reopeningproceeding for the assessment year 2016-17 is without jurisdiction. (E) Pending the hearing and final disposal of the writ petition, the effect,execution, implementation and further proceeding in pursuance to theimpugned order dated 11/04/2023 passed under U/Section 148-A(d)of Income Tax Act and consequential notice dated 11/04/2023 issuedU/Section 148 of Income Tax Act, for the assessment year 2016-17 bythe respondent no.2 may kindly be stayed.execution, implementation and further proceeding in pursuance to theimpugned order dated 11/04/2023 passed under U/Section 148-A(d)of Income Tax Act and consequential notice dated 11/04/2023 issuedU/Section 148 of Income Tax Act, for the assessment year 2016-17 bythe respondent no.2 may kindly be stayed. 4.Section 148-A (b) requires an opportunity of hearing to be given to the assessee, which would not be less than seven days and should not beexceeding thirty days from the date of the notice or such time as may beextended by the concerned authority on an application tendered by theassessee. 5. In Civil Appeal No.3005/2022 (Union of India and Others V/s. AshishAgarwal), the Hon'ble Supreme Court delivered a Judgment on 04.05.2022 59wp8372-23 and has specifically concluded in paragraph 10 (i) (the last sentence) whichreads as “the Assessing Officer shall, within thirty days from today provide tothe respective assessees information and material relied upon by the Revenue,so that the assessees can reply to the show-cause notices within two weeksthereafter”. 4.Section 148-A (b) requires an opportunity of hearing to be given to the assessee, which would not be less than seven days and should not beexceeding thirty days from the date of the notice or such time as may beextended by the concerned authority on an application tendered by theassessee. 5. In Civil Appeal No.3005/2022 (Union of India and Others V/s. AshishAgarwal), the Hon'ble Supreme Court delivered a Judgment on 04.05.2022 59wp8372-23 and has specifically concluded in paragraph 10 (i) (the last sentence) whichreads as “the Assessing Officer shall, within thirty days from today provide tothe respective assessees information and material relied upon by the Revenue,so that the assessees can reply to the show-cause notices within two weeksthereafter”. 6.There is no dispute that the petitioner received the notice under section148-A(b) of the Income Tax Act dated 24.03.2023. On the last date of thenotice period i.e. 05.04.2023, the petitioner sought an adjournment bytendering an online application. On 06.04.2023 i.e. one day thereafter, thepetitioner uploaded a detailed reply to the said show cause notice. RespondentNo.2 Authority delivered the impugned order on 11.04.2023. 7.The learned Advocate Shri Sharma, appearing for the Income TaxDepartment, has vehemently opposed this petition and submits that allgrounds can be kept open to be agitated by the petitioner under section 148 ofthe Income Tax Act. When a statutory remedy is available to the petitioner, thisCourt may not entertain the grievance. So also, the issue is as regards theamount which were not included in the income assessable to tax. 8. Considering the law as applicable and the view taken by us in PradeepTukaram Kokadwar (Writ Petition No. 102 of 2022 decided on 28.06.2023), it 59wp8372-23 is obvious that the Petitioner/Assessee can reply within thirty days. Section148-A(b) indicates that the minimum time to be granted is seven days and themaximum is thirty days. If a justifiable reason is put forth, the time can beextended even there beyond. We also find from the record that the petitionerhad applied for an extension of time which is in tune with the provisions of theIncome Tax Act. Having moved an application for extension of time andhaving submitted the reply within one day, the Department could haveconsidered his reply.9.The issue is that the Department did not look into the reply /response of the Petitioner which was uploaded on 06.04.2023, when thedecision was pronounced by the Department under 148-A (d), on 11.04.2023.It would have been pragmatic for the Department to have considered theresponse which was already available in it’s records at the time when thedecision was pronounced on 11.04.2023. We do not find any such conclusionfrom the judgment in Ashish Agarwal (supra), that a reply filed within theperiod of thirty days, but after the expiry of fourteen days mentioned in thenotice, should not be looked into by the Department. It is in the interest ofjustice and fair play that when a reply is available on record, though filedbelatedly, but, much prior to the decision arrived at by the authorities, the same should be considered. It would be far fetched to hold that the Departmentshould ignore such a reply only for the reason that it was filed belatedly, butbefore the final order was passed. 10.The learned Advocate for the Petitioner cites a judgment dated12.05.2022 delivered by the Delhi High Court in Divya Capital One PrivateLimited V/s. Assistant Commissioner of Income Tax Circle 7 (1) Delhi & Anr.,wherein a similar view is taken. A detailed reply was filed after the period setout in the notice under Section 148-A (b) had expired, but, was received by theDepartment before the final order could be passed. same should be considered. It would be far fetched to hold that the Departmentshould ignore such a reply only for the reason that it was filed belatedly, butbefore the final order was passed. 10.The learned Advocate for the Petitioner cites a judgment dated12.05.2022 delivered by the Delhi High Court in Divya Capital One PrivateLimited V/s. Assistant Commissioner of Income Tax Circle 7 (1) Delhi & Anr.,wherein a similar view is taken. A detailed reply was filed after the period setout in the notice under Section 148-A (b) had expired, but, was received by theDepartment before the final order could be passed. 11.In view of the above, thispetition is partly allowed.12.The order dated 11.04.2023. stands quashed and set aside and theproceedings are relegated to the office of Respondent No.2. We expect the saidauthority to consider the reply of the Petitioner dated 06.04.2023 in the light ofthe notice dated 24.03.2023 and pass an appropriate reasoned order inaccordance with law. 13.Rule is made partly absolute in the above terms. [Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.] JPChavan