Veena Prafullavelingkar v. Asst. Commissioner Ofincome Tax, Circle 1(1)Panaji And Anr.…

Niti IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS.489 & 490 OF 2022 WRIT PETITION NO.489 OF 2022 VEENA PRAFULLAVELINGKAR ... PETITIONER Versus ASST. COMMISSIONER OFINCOME TAX, CIRCLE 1(1)PANAJI AND ANR.… RESPONDENTS AND WRIT PETITION NO.490 OF 2022 PRAFULLA VELINGKAR ... PETITIONER Versus ASST. COMMISSIONER OFINCOME TAX, CIRCLE 1(1)PANAJI AND ANR. … RESPONDENTS Mr. Gaurang D. Panandiker, Advocate for the Petitioners.Ms. Susan Linhares, Standing Counsel for the Respondents. CORAM:M. S. SONAK & BHARAT P. DESHPANDE, JJ. DATE :27[th] FEBRUARY 2023 ORAL ORDER : 1.Heard Mr. Gaurang Panandiker for the petitioners in both thepetitions. Ms. Susan Linhares appears for the respondents. 2.In both these petitions, the challenge is to the impugned noticesissued under Section 148 of the Income Tax Act, 1961 seeking toreopen assessment for the year 2016-17, on the ground that suchincome escaped assessment. 3.The petitioners, admittedly, did not file a response to the noticeobjecting to its issuance, within the prescribed period. Such responsehad to be filed online. The petitioners state that they saw the noticebelatedly on the online portal of the Income Tax Department. Thedefence in their mail at the late stage, at least prima facie, cannot beregarded as a valid defence. The response was filed at a later point oftime in the physical mode and online. 4.Mr. Panandiker states that even a belated response was requiredto be considered given the decision of the Hon'ble Delhi High Courtin the case of Divya Capital One Private Limited (earlier known asDivya Portfolio Private Limited) V/s. Assistant Commissioner ofIncome Tax Circle 7(a) Delhi & Anr.1 5.Since, in this case, the explanation for delayed response was notsatisfactory, we do not think that, as a rule, the respondents were dutybound to consider the delayed response. 1 W.P. (C) 7406/2022 6.Mr. Panandiker submits that in terms of Section 149(1)(b), theassessment could not have been reopened since the same was involvingan amount of less than 50.00 lakhs. Ms. Linhares pointed out that₹total amount involved in both the matters was around 58.00 lakhs.₹It is only on account of application under Section 5-A of the IncomeTax Act that the individual notices might have referred to amountslesser than 50.00 lakhs. She, therefore, submits that the provisions of₹Section 149 (1)(b) would not apply. 7.At this stage, we are not concerned with the assessment onmerits. Merely because the notice seeking reassessment is not beinginterfered with, does not mean that the petitioners will be deprived ofan opportunity to raise all such issues during the assessmentproceedings. Accordingly, by granting liberty and otherwise clarifyingthat all the petitioners' contentions regards assessment are left open,we propose not to interfere with the impugned notices which are thesubject matter of these petitions. 8.Accordingly, these petitions are disposed of with aboveliberty/clarification. The petitioners' defences including the defencebased on the provisions of Section 149(1)(b) should be considered bythe Assessment Authorities in accord with law. 9.Accordingly, both these petitions are disposed of with liberty asaforesaid. BHARAT P. DESHPANDE, J. NITI K Digitally signed by NITI K HALDANKAR HALDANKARDate: 2023.02.28 10:16:05 +05'30' M. S. SONAK, J.