Wp/12373/2023 Of Rahul Rajendra Adhikari v. Income Tax Officer, Panvel

1/5 411.WP-12373-2023.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.12373 OF 2023 Rahul Rajendra Adhikari ….Petitioner V/s. Income Tax Officer, Panvel & Ors. ....Respondents---- Mr. Laukik Palekar a/w. Mr. Hemanshu Patel i/b. Mr. Akshay Zantye forpetitioner.Mr. Ajeet Manwani a/w. Ms. Samiksha Kanani for respondents – Revenue. ----CORAM : K. R. SHRIRAM & NEELA GOKHALE, JJ.DATED : 9[th] OCTOBER 2023 P.C. : 1Since affidavit in reply is on record, we have taken up thispetition for final hearing at this stage itself. 2Petitioner is impugning a notice dated 29[th] March 2023 issuedunder Section 148A(b) of the Income Tax Act, 1961 (the Act), order dated18[th] April 2023 under Section 148A(d) of the Act and notice dated18[th] April 2023 under Section 148 of the Act on various grounds. Theprimary ground is that the notice under Section 148A(b) of the Act hasbeen issued to a deceased person and even the order under Section148A(d) of the Act is not a valid order because the sanction under Section151 of the Act has been granted without application of mind. In paragraphs5, 6 and 7 of the petition, petitioner has averred that petitioner hadsubmitted a request via Income Tax Portal to be registered as legal heir ofthe assessee, the assessee having expired on 23[rd] July 2020. It is stated in 2/5 411.WP-12373-2023.doc the petition that the application to be registered as legal heir was made on10[th] February 2021. The application was accepted on 11[th] February 2021and all those details are available in the Income Tax Portal. Mr. Palekarsubmitted that subsequently on 12[th] February 2021 petitioner, as legal heirof the assessee, even filed return of income on behalf of the assessee forAssessment Year 2020-2021 which is also verifiable from the Income TaxPortal. The averments in the petition that petitioner had applied as legalheir of the assessee and the acceptance of the application have not beendenied in the affidavit in reply. 3In the affidavit in reply, all these averments are convenientlyskirted. The affidavit in reply only deals with the order passed underSection 148A(d) of the Act. It is stated that no notice under Section 148 ofthe Act can be issued without undertaking enquiry before assessment underSection 148A of the Act. We find this statement having been made twice inthe affidavit in reply, one in paragraph 6.1 and again in paragraph 6.4. It israther obvious that no such enquiry has been made because if the AssessingOfficer had only made such an enquiry or even bothered to verify theIncome Tax Portal relating to the deceased assessee, he would havecertainly come to know that the assessee is deceased and had died on23[rd] July 2020. The notice under Section 148A(b) of the Act has beenissued without making the enquiry as mandated under Section 148A of theAct. Therefore, the notice issued under Section 148A(b) of the Act itself would be bad in law and has to be quashed and set aside. We find supportfor this view in a judgment of this Court in the matter of DhirendraBhupendra Sanghvi V/s. Assistant Commissioner of Income Tax Circle –27(3) & Ors[1]. 4Since the notice under Section 148A(b) of the Act which is thebasic foundation for issuing a notice under Section 148A(d) of the Act itselfis invalid, on this ground alone, the order dated 18[th] April 2023 passedunder Section 148A(d) of the Act has to be quashed and set aside. would be bad in law and has to be quashed and set aside. We find supportfor this view in a judgment of this Court in the matter of DhirendraBhupendra Sanghvi V/s. Assistant Commissioner of Income Tax Circle –27(3) & Ors[1]. 4Since the notice under Section 148A(b) of the Act which is thebasic foundation for issuing a notice under Section 148A(d) of the Act itselfis invalid, on this ground alone, the order dated 18[th] April 2023 passedunder Section 148A(d) of the Act has to be quashed and set aside. 5As regards the order issued under Section 148A(d) of the Actread with notice under Section 148 of the Act, Mr. Palekar also states thatthe approval form under Section 151 of the Act which has been madeavailable alongwith the affidavit in reply also would indicate that there hasbeen total non application of mind by the Assessing Officer, theAdditional/Joint Commissioner of Income Tax, who recommended grant ofapproval as a fit case for issuance of notice under Section 148 of the Actand also the Principal Commissioner of Income Tax, who granted theapproval on 18[th] April 2023. 6We agree that the approval applied for and granted underSection 151 of the Act exposes the total non application of mind by theAssessing Officer who applied for the approval, the Additional/JointCommissioner of Income Tax who recommended granting of approval and 1. (2023) 151 taxmann.com 541 (Bombay) the Principal Commissioner of Income Tax who granted the approval. Wesay this because Row 9 of the approval form, copy whereof can be found inthe affidavit in reply, states “time limit for current proceedings coveredunder Section 149(1)(b) – for more than 3 years but not more than 10years”. The assessment pertains to Assessment year 2019-2020, whereas thenotice issued under Section 148A(b) of the Act is dated 29[th] March 2023and, therefore, within the three years period. If we take Row 9 to be correct, then Row 7 indicates “thequantum of income which has escaped assessment – Rs.3 lakhs”. Therefore,the notice issued under Section 148A(b) of the Act itself could not havebeen issued. 7Therefore, if only the Assessing Officer who applied forapproval under Section 151 of the Act had only read the approval form, hewould have made the required corrections. If only the Additional/JointCommissioner of Income Tax had read the approval form and the orderunder Section 148A(d) of the Act and the file relating to the matter, hewould not have recommended granting of approval. So also the PrincipalCommissioner of Income Tax. If he had only read the file, he would haverealised that if the time limit for current proceedings is covered underSection 149(1)(b) of the Act, i.e., for more than 3 years but not more than10 years, he has no power to grant approval and the approval should havebeen granted by the Principal Commissioner of Income Tax. 8In the circumstances, the order dated 18[th] April 2023 underSection 148A(d) of the Act and the consequent notice also dated 18[th] April2023 under Section 148 of the Act are hereby quashed and set aside. 9Petition disposed. (NEELA GOKHALE, J.) (K. R. SHRIRAM, J.)