2024 (9) TMI 1757 - HC - Income Tax

Reopening of assessment u/s 147 - specific contention of the petitioner is that the petitioner s reply was not considered and later extension of the time for filing a reply was never communicated to him - HELD THAT - In the cited decision of Meenu Chaufla 2022 (6) TMI 89 - DELHI HIGH COURT the application of adjournment filed by the assessee was not rejected or responded to. The contention of the assessee was also that they had filed a reply on 27.03.2022 but the Online portal itself was closed by the respondents on 24.03.2022. Further the assessee though could not upload the reply; submitted it through an e-mail addressed to the AO. The impugned order was passed after the e-mail was received by the AO. The non-consideration of the reply received was also found to have vitiated the order challenged therein. The instant case differs on facts distinctly. The petitioner as has been noticed submits that Annexure- 3 was never received by him but produced it along with the writ petition. Likewise Annexure- 4 reply is said to have been filed on 22.04.2024 after the order was passed. The petitioner was granted time up to 14.04.2023 and the order was passed only on 21.04.2023. There is no question of any remand being made for the purpose of hearing. We also notice that the order issued u/s 148A(d) of the Act is not conclusive since now the petitioner will be issued with a notice u/s 148. The counter affidavit of the respondents indicates that a notice has already been issued under Section 148 on 21.04.2023. The petitioner would be entitled to raise all contentions in reply to the said show cause notice if the same has not been concluded till now.

Summary

The Patna High Court, presided by the Chief Justice and Justice Partha Sarthy, dismissed the writ petition challenging the order passed under Section 148A(d) of the Income Tax Act, 1961. The petitioner contended that his reply was not considered and that the extension for filing the reply (Annexure-3) was never communicated to him. The Court noted that although the petitioner claimed non-receipt of Annexure-3, he produced it with the petition, and the reply (Annexure-4) was filed after the order was passed.Relying on the Delhi High Court decision in Meenu Chaufla vs. Income Tax Officer, the petitioner argued for non-consideration of his reply; however, the Court distinguished the facts, noting that in Meenu Chaufla the adjournment application was ignored and the reply was submitted via email before the order. Here, the petitioner was granted time up to 14.04.2023, and the order was passed on 21.04.2023.The Court emphasized that the order under Section 148A(d) is not final, as a notice under Section 148 has already been issued (on 21.04.2023). The petitioner retains the right to raise all contentions in response to the Section 148 notice. Accordingly, the writ petition was dismissed, granting liberty to the petitioner to contest the subsequent proceedings.