TMI Blog2023 (5) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the order u/s 148A(d) from the portal. When the petitioner is deprived of opportunity of defending his case and consideration of his reply to the notice for reopening, the request that the objections which was filed in response to the notice under unamended provisions may be considered by the Assessing Officer to be the reply to notice under section 148A(b) of the Act, is reasonable. It would sub-serve the purpose of compliance of natural justice and giving a fair treatment to assessee to put forth its case and avail the reasonable opportunity of being heard which the statute expressly contemplates for the assessee. It is in tune with provisions of section 148 of the Act. When the reassessment notice issued under the unamended provision is directed to be treated and deemed to have been as notice under section 148A(b) of the Act, the scope of words in sub-clause (c), consider the reply of the assessee furnished, if any, in response to the show-cause notice referred to in clause (b) could be construed and applied accordingly. The show cause notice referred to in clause (b) could be equated with show cause notice issued under the unamended section 148 of the Act. Sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 (hereinafter referred to as the Act ) requiring the petitioner to file return of income for Assessment Year 2016-2017. The petitioner filed its return of income under section 139 of the Act on 30.7.2021. The petitioner thereafter requested for copy of reasons recorded from the officer. The notice under section 143(2) of the Act was issued on 27.9.2021 and the respondent No.1 Assessing Officer supplied copy of reasons on the same date. 3.1 In the reasons recorded, respondent No.1 alleged against the petitioner that the petitioner purchased immovable property for consideration of Rs. 30,23,10,000/-. It was further alleged that the petitioner was a shell company which was not actually involved in any kind of business activity, however, was found, according to the Assessing Officer, to have acquired immovable property from income earned by undisclosed source. 3.2 It was further alleged that while the assessee company had purchased immovable property, the details of the said transactions were not disclosed in the books of accounts of the petitioner. Therefore, the Assessing Officer concluded that the investment of Rs. 30,23,10,000/- was made for the immovable property by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the petitioner that he did not receive any notice under section 148A(b) of the Act, however, it was stated that while checking the portal, the petitioner came across the notice under section 148A(b) of the Act for the first time and order under section 148A(d) passed became known, as well as notice under section 148 of the Act thereafter came to be issued. It was, therefore, stated that it was in consequence of the decision of the supreme court in Ashish Agrawal (supra) that on 23.5.2022, the notice under section 148A(b) of the Act was issued to the petitioner, although he did not receive the same. 4. Learned advocate for the petitioner submitted that on one hand the petitioner has not received notice under section 148A(b) of the Act, the order under section 148A(d) came to be passed in which the petitioner had no opportunity to put forth his case. He could not defend against the allegations which suggested that income to the tune of Rs. 30,23,10,000/- chargeable to tax escaped the assessment as per the allegations levelled in the notice under section 148A(b) of the Act. It was submitted that respondent no.1 relied on the reasons recorded which were supplied alongw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessees and Revenue under the Finance Act, 2021 and in law shall continue to be available. (para 28.5) 5.2 In the present case, as noted above, the petitioner had responded to the earlier notice issued by the department under the old or unamended provisions by filling the objections, which were not decided. The petitioner groped in dark as to the receptivity, much less acceptability of its objections, at the end of the Assessing Officer. The said notice was treated to be notice under section 148A(b) of the Act in view of the decision of the Supreme Court in Ashish Agarwal (supra) and the direction that the notice under the unamended section 148 of the Income Tax Act shall be construed and treated to be show cause notice in terms of section 148A(b). The petitioner at this juncture was entitled to be informed of the material relied upon by the revenue in connection with the notice. As per the direction of the supreme court in paragraph No. 28.1 of Ashish Agarwal (supra) upon receipt of the material, the assessee was entitled to file reply to the show cause notice within two weeks thereafter. The concept of reasonable opportunity obviously remained common thread in both ol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether or not it is a fit case to issue a notice under section 148, by passing an order, with the 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: 5.4.1 The aforesaid provision in its clause (b) expressly contemplates and provides opportunity of being heard to the assessee. The assessee is entitled to file reply. Sub-clause (c) of section 148A says that the reply of the assessee shall be considered which may be furnished by it in response to the show cause notice referred to in clause (b). As per clause (d) of section 148A, the assessing officer is required to decide the case of the assessee regarding reopening on the basis of material available on record including the reply of the assessee and to decide whether the case is fit or not to issue notice under section 148 of the Act. 5.5 When we compare the unamended provisions and the provisions which were brought about into force with effect from 1.4.2021 in the contex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had filed its objections to the notice for reassessment under section 148 un-amended issued to him, however, the Assessing Officer never attended to the objections dated 12.10.2022 and left it undecided. Thereafter, the old notice dated 30.6.2021 was treated under the new provisions to be the notice under section148A(b) at this stage the petitioner was deprived of opportunity to put forth his case against the proposed reopening of the assessment. According to the petitioner assessee, the notice was never subsequently served on him and he did not receive it and only knew about passing of the order under section 148A(d) from the portal. Be as it may. 5.8 In the totality of facts emerging, when the petitioner is deprived of opportunity of defending his case and consideration of his reply to the notice for reopening, the request that the objections which was filed in response to the notice under unamended provisions may be considered by the Assessing Officer to be the reply to notice under section 148A(b) of the Act, is reasonable. It would sub-serve the purpose of compliance of natural justice and giving a fair treatment to assessee to put forth its case and avail the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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