2010 (1) TMI 36 - HC - Income Tax

Service of notice u/s 148 - A notice under Section 148 of the Income Tax Act 1961 was issued on 27th February 2009. The said notice was sent by speed post as well as through a notice server. The said notice under Section 148 was hand delivered by the notice server on 16th March 2009 at the chamber address of the petitioner at Tis Hazari Courts. - However said notice which was hand delivered on 16th March 2009 is said to have been received by one Sandhya Mittal whom the petitioner claims not to know. It is on this basis that the petitioner took the stand that the notice under Section 148 was not received by the petitioner - we find that the reasons had been disclosed and furnished to the petitioner who had also filed his reply/objections which had been considered and disposed of by a speaking order dated 4th December 2009. However we note the petitioner did not file any return despite the specific requirement under the law. Because the petitioner did not file a return the assessment order dated 30th December 2009 has been made under Section 144 of the said Act. Assessee can not argue the case two times Assessee petition dismissed.

Summary

Issues involved:
Quashing of assessment order dated 30th December, 2009 under Section 147/148 of the Income Tax Act, 1961.

Detailed Analysis:

1. Service of Notice under Section 148:
The petitioner contested the receipt of the notice under Section 148, claiming it was delivered to an unknown person. Despite this, the petitioner inspected the file on 23rd November, 2009, where the reasons for reopening the case were provided along with the notice under Section 142(1) and a letter dated 23rd October, 2009. The petitioner acknowledged receiving the reasons and filed a detailed reply/objections on 2nd December, 2009. The Court directed the respondent to serve a copy of the notice dated 27th February, 2009, which was done on 22nd December, 2009.

2. Opportunity of Hearing:
The petitioner alleged a lack of opportunity to respond adequately. However, the Court noted that the petitioner had multiple opportunities to present his case. The petitioner had access to the file, responded to the reasons for reopening, and filed a comprehensive 35-page reply/objections. The Court emphasized that the petitioner was not denied any opportunity to be heard.

3. Legal Precedent and Assessment Order:
Referring to the legal precedent set by the Supreme Court in GKN Driveshafts (India) Ltd. vs. Income Tax Officer, the Court highlighted the petitioner's obligation to file a return upon receiving a notice under Section 148. Despite the petitioner's objections being considered and disposed of, the assessment order dated 30th December, 2009 was made under Section 144 due to the petitioner's failure to file a return. The Court reiterated that the petitioner had the right to appeal the assessment order.

4. Re-agitation of Issues:
The Court emphasized that the petitioner was attempting to re-agitate matters already adjudicated upon in a previous writ petition. The Court clarified that the directive to serve a copy of the notice did not entail issuing a fresh notice under Section 148. The petitioner's grievances with the assessment order were deemed to have been addressed previously, and any further disputes could be pursued through the appropriate legal channels.

5. Final Decision:
The Court concluded that the writ petition lacked merit and dismissed it, highlighting that the issues raised had already been addressed in previous proceedings. The petitioner was advised to seek recourse through the appeal process concerning the assessment order dated 30th December, 2009.

This comprehensive analysis of the judgment highlights the key legal arguments, procedural steps, and the Court's reasoning leading to the dismissal of the writ petition seeking the quashing of the assessment order dated 30th December, 2009 under Section 147/148 of the Income Tax Act, 1961.