2019 (12) TMI 1469 - HC - Income Tax

Reopening of assessment u/s 147 - petitioner seeks interim relief - as submitted by assessee initially for the assessment year 2012-2013, the assessment order was passed by the Assessing Authority and on the same material again the Assessing Authority has proceeded to issue a show cause notice under Section 148 - respondent submits that certain materials were not earlier disclosed by the Assessing Authority while passing the first assessment order and the said material came in the light when the fresh notice has been issued by the Assessing Authority by invoking the provisions of Section 148 of the Income Tax Act on the basis of which the order in question has been passed - HELD THAT - After hearing learned counsel for parties and going through the record, it transpires that the matter needs consideration by this Court, thus, as an interim measure, we provide that the assessment order passed by the Assessing Authority for the assessment year 2012-13 may go on but no final order should be passed till the next date of listing. Learned counsel for the respondents prays for and is granted four weeks' time to file counter affidavit. Two weeks' time thereafter is granted to file rejoinder affidavit.

Summary

Issues:
1. Validity of the show cause notice issued under Section 148 of the Income Tax Act for the assessment year 2012-2013.
2. Disclosure of certain materials by the Assessing Authority during the assessment process.
3. Consideration of the matter by the Court and provision of interim relief.

Analysis:
1. The appellant argued that issuing a show cause notice under Section 148 of the Income Tax Act for the assessment year 2012-2013, based on the same material as the initial assessment order, was contrary to established legal principles laid down by the Supreme Court and a Delhi High Court case. The appellant cited Commissioner of Income Tax Vs. Kelvinator of India Ltd., 2010 (320) ITR 561 (SC) and Messe Dusseldorf Indian P. Ltd. Vs. Deputy Commissioner of Income Tax, Transfer Pricing Officer, and another, 2010 (320) ITR 565 (Delhi) to support their contention.

2. The respondent, represented by counsel, contended that certain materials crucial for assessment were not disclosed by the Assessing Authority during the initial assessment process. These undisclosed materials came to light when the fresh notice was issued under Section 148 of the Income Tax Act. The respondent's argument was based on the premise that the subsequent assessment order was passed based on these newly discovered materials, which were not available during the first assessment.

3. After considering the arguments from both parties and reviewing the records, the Court deemed it necessary to further deliberate on the matter. As an interim measure, the Court allowed the assessment order for the assessment year 2012-13 to proceed but directed that no final order should be passed until the next date of listing. The respondents were granted four weeks to file a counter affidavit, followed by two weeks for the appellant to file a rejoinder affidavit. The Court scheduled the case for listing along with other related Writ Petitions, clarifying that the interim protection granted would be subject to further consideration after hearing both parties on the next listing date.