TMI Blog2022 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... tax by making claim of bogus expenditure in terms of bogus purchases. These facts are his defence which can be examined while conducting proceeding under Section 148A. The grounds which have been taken by the petitioner in the writ petition is his defence that cannot be examined at the stage of issuance of notice under section 148 as the Assessing Authority before issuance of notice under Section 148 of the Act, 1961 has to rely upon credible information which in the impugned order under Section 148A (d) of the Act, 1961 has already been furnished and thereafter, considering the material it has recorded a finding that it is a fit case where notice under Section 148 of the Act, 1961 can be issued. Petitioner is unable to point out that the findings which have been recorded by the Assessing Authority are contrary to the material on record and the Assessing Authority has not applied its mind or Assessing Authority has not considered the reply filed by the petitioner. Therefore, the writ petition, at this juncture is not maintainable and deserves to be dismissed. Writ petition being devoid of merit is liable to be and is hereby dismissed - WPT No. 186 of 2022 - - - Dated:- 28-7-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces issued by others. As per detailed information available with this office, you are a beneficiary of transaction for an amount of Rs.2,20,00,275/- made during the financial year 2017-2018 relevant to the AY 2018-2019 in the form of accommodation entry. In view of the above discussion, it is evident that income chargeable to tax amounting to Rs.2,20,00,275/- has escaped assessment for AY 2018-19 and this is a fit case for issue of notice to show cause u/s 148A (b) of the Income Tax Act, 1961. You are therefore requested to show cause as to why a notice u/s 148 should not be issued on the basis of the above flagged information. 3. The petitioner has submitted reply to the notice vide Annexure P/6 denying the allegations made in the notice contending that the notice was issued for providing opportunity of hearing being heard with respect to income chargeable to tax has escaped assessment as denied that any fake invoices that was used the same and the same is utilized for input tax credit. The petitioner prayed for supply of credible information along with copy of the fake invoices and copy of approval of the specified authority. The Assessing Authority considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued under section 148 of the Act, 1961 be quashed. To bolster his arguments, he has relied upon the decisions of Hon ble High Court of Allahabad in Writ Tax No 641 of 2022 (Dharmendra Kumar Singh versus Union of India and 2 others 2022 (5) TMI 1390) and Hon ble High Court of Gujarat in Studio Virtues vs. Income Tax Officer Ward 5 (3) (1) or His successor in R/Special Civil Application No 7169 of 2022 2022 (6) TMI 520. 6. Per contra, learned counsel for respondents No. 2 to 4 would submit that the petition is premature at this stage as the petitioner has an opportunity to give reply to the show cause notice which has already been issued under Section 148-A of the Act, 1961 wherein the petitioner can file all the materials and the Assessing Authority will examine the order and thereafter any order can be passed under Section 148A of the Act, 1961 which is also an appellable order before the Appellate Authority and thereafter, the Income Tax Tribunal, as such the petitioner has alternative efficacious remedy available to him under Income Tax Act, therefore, the writ petition at this juncture is premature and deserves to be dismissed on the count as it is a preliminary stage and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prior approval of specified authority, within one month from the end of the month in which the reply referred to in clause (c) is received by him, or where no such reply is furnished, within one month from the end of the month in which time or extended time allowed to furnish a reply as per clause (b) expires: Provided that the provisions of this section shall not apply in a case where, - (a) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A in the case of the assessee on or after the 1st day of April, 2021; or Advertisement (b) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any money, bullion, jewellery or other valuable article or thing, seized in a search under section 132 or requisitioned under section 132A, in the case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (c) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any books of account or documents, seized in a search under section 132 or requisitioned under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also that where immediately after the exclusion of the period referred to in the immediately preceding proviso, the period of limitation available to the Assessing Officer for passing an order under clause (d) of section 148A is less than seven days, such remaining period shall be extended to seven days and the period of limitation under this subsection shall be deemed to be extended accordingly. Explanation: For the purposes of clause (b) of this sub-section, asset shall include immovable property, being land or building or both, shares and securities, loans and advances, deposits in bank account. Section (2): The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151 . 10. Section 148-A of the Act, 1961 has come for consideration before the Hon ble Supreme Court in case of Union of India vs. Ashish Agrawal (supra) wherein the Hon ble Supreme Court has examined the scheme in paragraphs 6.4 to 7 which are extracted as below. 6.4 However, by way of section 148A, the procedure has now been streamlined and simplified. It provides that before issuing any notice under section 148, the assessing Officer shall (i) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement with the view taken by the various High Courts in holding so . 11. From the aforesaid provisions of the Act, 1961 as well as the law laid down by Hon ble Supreme Court, it is quite vivid that complete mechanism for determination of escape amount has been provided under the statute and the Assessing Authority, in the present case, while considering the submissions, reply made by the petitioner, has applied its mind and passed the impugned order under Section 148A(d) of the Act, 1961. In fact, in the present writ petition, the petitioner has raised grounds denying the fact that the petitioner did not enter into any purchase or sale transaction with M/s Panveer Trading Private Limited and he has also not claimed any input tax credit with respect to goods and service tax purportedly paid by M/s Panveer Trading Private Limited and he has also not entered any transaction with M/s Panveer Trading Company, as such there is no question of escapement of income chargeable to tax by making claim of bogus expenditure in terms of bogus purchases. These facts are his defence which can be examined while conducting proceeding under Section 148A of the Act, 1961. 12. Hon ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 148 of the Act, is given, the proper course of action for the assessee is to file a return and if he so desires, to seek reasons for issuing the notice, and the assessing authority is bound to furnish the reasons for reopening the assessment. On receipt of the issuance of the notice and the assessing officer is bound to dispose of the same by passing a speaking order. 17. In the present case, the allegation of the petitioner is that, pursuant to the notice under Section 148 of the Act, when an objection was submitted by the petitioner, no speaking order was passed on it, rather an assessment order was passed directly. The arguments have been raised without taking note of the fact that while sending the show cause notice and draft assessment order on 24-9-2021, the order on the objections was also sent, after dealing with the objections. When no response to the show cause notice along with the draft assessment order was received, the final assessment order was passed on 28-9-2021. 18. Accordingly, we do not find this as a fit case for maintaining a writ petition to challenge the assessment order. However, the petitioner can seek remedy by filing an appeal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
