23 May 2022 6:21 AM GMT
A Division Bench comprising of Chief Justice Sanjib Banerjee and Justice W. Diengdoh of Meghalaya High Court has held that no order can be passed under Section 148A(d) of the Income Tax Act, 1961, without taking into consideration reply filed by an assessee to the initial notice issued under Section 148A(b).Section 148A provides that the Assessing Officer shall, before issuing any...
A Division Bench comprising of Chief Justice Sanjib Banerjee and Justice W. Diengdoh of Meghalaya High Court has held that no order can be passed under Section 148A(d) of the Income Tax Act, 1961, without taking into consideration reply filed by an assessee to the initial notice issued under Section 148A(b).
Section 148A provides that the Assessing Officer shall, before issuing any notice under section 148—
(a) conduct any enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment;
(b) provide an opportunity of being heard to the assessee by serving upon him a notice to show cause in 7-30 days as to why a notice under section 148 should not be issued on the basis of information suggesting escaping of tax;
(c) consider the reply of assessee furnished, if any, in response to the show-cause notice;
(d) decide, on the basis of material available on record including reply of the assessee, whether or not it is a fit case to issue a notice under section 148.
In the instant case, an initial notice under clause (b) of Section 148A of the Act for assessment year 2015-16 was issued to the assessee (petitioner herein) on March 23, 2022. Such notice required the assessee to show cause why a notice under Section 148 of the Act should not be issued. The petitioner responded to the show-cause notice and such reply was duly lodged.
However, the impugned order under clause (d) of Section 148A of the Act was issued on April 1, 2022 without taking the petitioner's response to the initial notice into consideration. The same was apparent from the penultimate paragraph of the impugned notice of April 1, 2022 which recorded that no reply was furnished by the assessee in response to the notice under Section 148A(b) of the Act. The petitioner challenged the aforesaid order through this writ petition.
After going through the facts and circumstances, the Court held,
"Since there appears to be an error apparent on the face of the impugned order passed under Section 148A(d) of the Act dated April 1, 2022 and the Department failed to consider the assessee's written response that was received by the Department on March 30, 2022, the impugned order of April 1, 2022 cannot be sustained and the same is set aside. As a consequence, the notice under Section 148 of the Act also dated April 1, 2022 is quashed with liberty to the Department to issue a fresh notice in accordance with law, if the Department is so entitled."
The Court gave liberty to the Department to consider the matter afresh by taking into account the petitioning assessee's response of March 30, 2022 before taking further steps in the matter in accordance with law.
Case Title: Jasmine Bonny Agitok Sangma v. Union of India & Ors.
Case No.: WP (C) No. 179/2022
Judgment Dated: 20 May 2022
Coram: Chief Justice Sanjib Banerjee & Justice W. Diengdoh
Judgment Authored By: Chief Justice Sanjib Banerjee
Counsel for the Petitioner: Dr. A. Saraf, Senior Advocate
Counsel for the Respondents: Dr. N. Mozika, ASG along with Ms. S. Rumthao, Advocate
Citation: 2022 LiveLaw (Meg) 16
Click Here To Read/Download Judgment