Wp(C)/17539/2025 Of Dinabandhu Foundation For Educational Research And Socio Economic Development, Bbsr v. Chief Commissioner Of Income Tax, (Exemptions)., Hyderabad

Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17539 of 2025 …. Dinabandhu Foundation for Educational Research and Socio-Economic Development, Bhubaneswar Petitioner Mr. Rudra Prasad Kar, Senior Advocate assisted by Mr. S. Satyakam and Ms. Adyasha Kar, Advocates -Versus- …. Opposite Parties Chief Commissioner of Income Tax, (Exemptions), Hyderabad and others Mr. Avinash Kedia, Junior Standing Counsel for O.Ps. No.1 & 2 CORAM: HON’BLE THE CHIEF JUSTICE AND HON’BLEMR. JUSTICE MURAHARI SRI RAMAN ORDER 01.07.2025 1.The writ petition is filed assailing an order of the authority passed under Section 148A (3) of the Income Tax Act, 1961 (in short, the ‘Act’) on the escaped assessment in contemplation to initiate a proceeding under Section 148 of the said Act. 2.The object and the purpose underlying incorporation of Section 148A of the Act is to provide an opportunity to the assessee to furnish all the information and the relevant documents before it forms an opinion regarding the escapement of the relevant assessment, which attracts the tax to be levied on the said assessee so that adequate safeguards can be ensured. The tenet and the object of Section 148A of the Act is laudable that formation of an opinion by passing an order under Sub-Section (3) of Section 148A is mere tentative and no finality could be attached on the imposition of tax. It is the exercise undertaken by the assessing officer in contemplation to issue a notice under Section 148 of the said Act, which on final adjudication assumes the character of liability to pay tax. The Sub-Section of Section 148A on its conjoint reading does not inculcate any notion of a final decision by the assessing officer. Though Sub-Section (3) of Section 148A mandates that the assessing officer may pass an order upon obtaining a prior approval of the specified authority, but such approval cannot be said to be sacrosanct for all purposes even if the specified authority holds a high position in the hierarchy of the system. It is mere a tentative observation and does not absolve the onerous duty cast upon the assessing officer to exercise its powers, jurisdiction and the discretion vested under Section 148 of the said Act. 3.None of the observations made at the time of formation of an opinion under Section 148A of the Act has any impact on the order to be passed under Section 148 and there is a real distinction between the exercise of jurisdiction and powers conferred upon the assessing officer in the aforesaid provisions. The apprehension of the petitioner that the moment the specified authority, who holds the high position has granted the approval, the assessing officer coming under the lower rank would be swayed and/or bound by the same. We do not find that the language employed in Section 148 and Section 148A of the said Act can be construed to suggest such notion. The moment the authority is exercising the powers within the folds of the law, such decision is independent and cannot be overshadowed or swayed by the dictate of the higher officer. The exercise of powers emanating from the statutory provision has to be exercised by the competent authority within the contours thereof and the extraneous factors cannot be imported to eclipse such powers as the decision taken by the said statutory authority is susceptible to be tested by this Court under the power of judicial review. Even the appellate authority may also interfere, if the approach is made in terms of the statutory provisions and, therefore, it is inconceivable that the assessing officer, while exercising its power and jurisdiction under Section 148 of the Act, shall not decide the proceedings impartially, independently and/or fairly by following the principles of natural justice. 4.Several issues are raised in the instant writ petition including the leave to rely upon the documents subsequently obtained after the exercise of due diligence, which in our opinion exercising its power and jurisdiction under Section 148 of the Act, shall not decide the proceedings impartially, independently and/or fairly by following the principles of natural justice. 4.Several issues are raised in the instant writ petition including the leave to rely upon the documents subsequently obtained after the exercise of due diligence, which in our opinion can be relied upon in the event the assessing officer proceeded under Section 148 of the said Act. The petitioner will get an opportunity under the aforesaid provision to file its defence and may also rely upon all the documents, which in its opinion are relevant and would justify the formation of an opinion by the assessing officer under Section 148A of the Act to be perverse. 5.Mere passing an order under Section 148A (3) of the Act does not foreclose the right to defend under Section 148, we, thus, do not find that the writ petition deserves entertainability. 6. It has been brought to our notice by the respective counsel(s) that the statutory period of filing the return has expired yesterday (30[th] June, 2025) i.e. during the pendency of the instant writ petition. It is submitted that since the writ petition was filed assailing the order, the compliance could not be made. Though we are conscious that once the statute provides a time within which the steps are required to be taken is to be strictly adhered to, yet it does not put an absolute fetter in the Constitutional Court to extend the time in the mitigating circumstances and also upholding the rule of justice. We, therefore, direct the Department to accept the return, if any, filed within one week from date. 7.In the light of the observations made hereinabove, we dispose of the instant writ petition. 8.The appearance memo filed by Mr. Rudra Prasad Kar, learned Senior counsel appearing on behalf of petitioner is taken on record. (Harish Tandon) Chief Justice (M.S. Raman) Judge M. Panda Signature NotVerified Digitally SignedSigned by:MRUTYUNJAYAPANDADesignation: SecretaryReason: AuthenticationLocation: High Court ofOrissa, CuttackDate: 14-Jul-202518:49:09