Wp/10946/2022 Of Makkini Govindarajulu Baskaran v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE R.SURESH KUMAR Makkini Govindarajulu Baskaran ... Petitioner The Assistant Commissioner of Income TaxNon-Corporate Circle 22(1)TambaramChennai. ... Respondent PRAYER: Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a Writ of Certiorari, calling forthe records pertaining to the order dated 29.03.2022 made inITBA/AST/F/148A/2021-22/1041985537(1) on the file of theAssistant Commissioner of Income Tax, Non-Corporate Circle 22(1), Tambaram, Chennai, the respondent herein and quash thesame. For Respondent: Mr.D.Prabhu Mukunth ArunkumarJunior Standing Counsel ORDER The prayer sought for herein is for a Writ of Certiorari,calling for the records pertaining to the order dated 29.03.2022made in ITBA/AST/F/148A/2021-22/1041985537(1) on the file of theAssistant Commissioner of Income Tax, Non-Corporate Circle 22(1), Tambaram, Chennai, the respondent herein and quash thesame. 2. In respect of the Assessment Year 2018-19, the Revenuewanted to reopen the assessment under Section 147 of the IncomeTax Act, 1961 [in short, 'the Act']. Therefore, before issuanceof notice under Section 148 of the Act, they wanted to exhaust https://hcservices.ecourts.gov.in/hcservices/ the procedures contemplated under Section 148A of the Act.Therefore, a notice under Clause (b) of Section 148A of the Actwas issued on 18.03.2022, wherein, time was given to thepetitioner/assessee to respond on or before 23.03.2022. Sincethe time granted is very minimal, the petitioner/assessee thoughmade an attempt to give a reply on 23.03.2022, that could not bemade possible. Therefore, in the meanwhile on 29.03.2022, theorder has been passed under Clause (d) of Section 148A of theAct, disposing the said proceedings, thereby decided to invokeSection 148 of the Act to issue a notice towards processing theassessment under Section 147 of the Act. Challenging the saidorder passed under Clause (d) of Section 148A of the Act dated29.03.2022, the present writ petition has been filed. 3. Heard Mr.S.Saravanakumaran, learned counsel appearingfor the petitioner/assessee, who pointed out that, if at all anorder to be passed under Clause (d) of Section 148A of the Act,notice under Clause b should be issued, where, the notice notless than 7 days atleast i..e, minimum 7 days to be given with amaximum of 30 days notice. Here in the case on hand, on18.03.2022, notice was issued, giving time only on 23.03.2022.Therefore, it is not even the minimum 7 days provided.Therefore, the very initiation of notice under Clause (b) ofSection 148A of the Act itself is vitiated as the mandatoryminimum 7 days has not been provided. 4. Because of which, according to the learned counsel forthe petitioner, though an attempt has been made to prepare thereply and give it to the Revenue on 29.03.2022, that could notbe materialized. With the result, without the reply being filedor considered, the order under Clause (d) of Section 148A of theAct was issued. Hence, the order is also equally vitiated, hecontended. 5. Per contra, Mr.D.Prabhu Mukunth Arunkumar, learnedJunior Standing Counsel appearing for the Revenue would submitthat, a notice was issued on 18.03.2022, giving time upto23.03.2022. Within the said time, the petitioner was able toprepare the reply and he claims that it has been made an attemptto send reply through E-mail ID. If that being so, he cannottake a ground that, minimum time of 7 days since has not beengiven, he could not file the reply. Therefore, even though the 7days minimum time has been prescribed under Clause (b) ofSection 148A of the Act, in the present case, the said defencetaken may not be justifiable in view of the factual matrix ofthe case, he contended. 5. Per contra, Mr.D.Prabhu Mukunth Arunkumar, learnedJunior Standing Counsel appearing for the Revenue would submitthat, a notice was issued on 18.03.2022, giving time upto23.03.2022. Within the said time, the petitioner was able toprepare the reply and he claims that it has been made an attemptto send reply through E-mail ID. If that being so, he cannottake a ground that, minimum time of 7 days since has not beengiven, he could not file the reply. Therefore, even though the 7days minimum time has been prescribed under Clause (b) ofSection 148A of the Act, in the present case, the said defencetaken may not be justifiable in view of the factual matrix ofthe case, he contended. 6. I have considered the said submissions made by thelearned counsel appearing on both sides and have perused thematerials placed before this Court. 7. It is a settled proposition that, under a Statute, ifparticular thing has to be done in a particular manner, thatshould be only done in such manner not otherwise. 8. Here in the case on hand, if at all notice to be issuedunder Clause (b) of Section 148A of the Act, minimum 7 daystime should be given. Here in the case on hand, admittedly, lessthan 6 days time was given through the notice issued by theRevenue dated 18.03.2022. 9. Within the said time, even though an attempt was made bythe petitioner/assessee to make the reply through E-mail on29.03.2022, that has not reached the Revenue. Therefore, theRevenue proceeded to pass the impugned order under Clause (d) ofSection 148A of the Act. Therefore, the impugned order, nodoubt, is vitiated because of the mandatory minimum 7 days hasnot been given in this case. On that ground, this Court has nohesitation to hold that the impugned order is unsustainable.Accordingly, this Court is inclined to interfere with. 10. In that view of the matter, this Court is inclined todispose of this writ petition with the following order: (i) That the impugned order is set aside and the matter isremitted back to the respondent for reconsideration. Duringreconsideration process, taking the notice dated 18.03.2022 as afresh notice under Clause (b) of Section 148A of the Act, it isopen to the petitioner/assessee to respond by giving a detailedreply with input whatever, within a period of 15 days from thedate of receipt of a copy of this order and if such a reply isfiled within the time stipulated, it is open to the Revenue topass orders under Clause (d) of Section 148A of the Act. 11. With these directions, the writ petition standsdisposed of. No costs. Consequently, connected miscellaneouspetitions are closed. Sd/- Assistant Registrar(CS-IV) //True Copy// Sub Assistant Registrar kak https://hcservices.ecourts.gov.in/hcservices/ To The Assistant Commissioner of Income TaxNon-Corporate Circle 22(1)Non-Corporate Circle 22(1) TambaramChennai.Chennai. +1cc to M/s.Hema Murali Krishnan, Advocate, S.R.No.29229 +1cc to Mr.M.Velmurugan, Advocate, S.R.No.29304 W.P.No.10946 of 2022 MG(CO)SU(23/05/2022)