TMI Blog2023 (3) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... asis cannot be in abstract for the reason that Section 148A(b) of the Act requires notice to be issued under the said section i.e. 148A(b) as to why notice u/s 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment. We find in the present case that only information which was supplied to the petitioner while issuing notice u/s 148A(b) of the Act was that as per the information received from 'other Income Tax authority' the petitioner's capital gain during the previous relevant Assessment Year-2018-19, was not shown properly in the Income Tax Return. The said Annexure with the notice u/s 148A(b) of the Act did not at all disclose as to what information was in fact there with Assessing Officer suggesting that the said capital gain during the Assessment Year-2018-19 was not shown in the ITR. In our view, it was incumbent upon the AO to disclose the nature of information received by it for due compliance of the requisite condition prescribed u/s 148A(b) - The submission that this writ application is premature having been filed against issuance of notice u/s 148 is not acceptable to this Court in the admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the order passed, if required, under Clause (d) of Section 148A of the Act, subject to the provisions of Section 148A of the Act, requiring him to furnish a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. The proviso to Section 148 ordains that no notice under Section 148 can be issued unless there is an 'information' with the Assessing Officer which suggests that an income chargeable to tax has escaped assessment in the case of assessee for the relevant assessment year and the Assessing Officer had obtained prior approval of the specific Authority to issue such notice. Explanation: For the purposes of Section 148 of the Act and Section 148A, the information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment means (i) any information in the case of the assessee for the relevant assessment year in accordance with the risk management strategy formulated by the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Section 132A, in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, [relate to, the assessee; or (d) the Assessing Officer has received any information under the scheme notified under Section 135A pertaining to income chargeable to tax escaping assessment for any assessment year in the case of the assessee .] Explanation. For the purposes of this section, specified authority means the specified authority referred to in Section 151.] In a recent decision of the Supreme Court in Union of India Ors Vs. Ashish Agarwal reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 226 of the Constitution of India seeking quashing of the show-cause notice issued under Section 148A(b) of the Act by the Assessing Authority of Income Tax (Assessing Officer in short) for the Assessment Year-2018-19. The petitioner has also put to challenge the order passed under Section 148A(d) of the Act, holding it to be a case for issuance of notice under Section 148 of the Act. Notice under Section 148 of the Act came to be issued on 31.03.2022 by the Assessing Officer calling upon the petitioner to furnish a return of income within 30 days of service of notice. The said notice issued under Section 148 of the Act is also under challenge in the present writ application. We have heard Mr. Ajay Kumar Rastogi, learned Senior counsel appearing on behalf of the petitioner assisted by Ms. Smriti Singh learned Advocate and Mrs. Archana Sinha, learned Senior Standing Counsel for the Income Tax Department. The main thrust of the submission advanced on behalf of the petitioner is that providing an opportunity under Section 148A(b) of the Act for the purpose of issuance of notice under Section 148 of the Act must be based on an information(which must be tangible information) capab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed by the assessee on. Assessment in this case was completed by the NFAC determining total income at Rs.685.61 crores. In this case information was received from the INSIGHT portal/which suggested that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant assessment year. The information received by the AO was within the Explanation I(i) of proviso to section 148 and the information in the instant case is categorized under head 'any information flagged in the case of the assessee for the relevant assessment year in accordance with the risk management strategy formulated by the Board from time to time' 2. The information available with the AO was analyzed and duly verified as per xxxxxxxxxxxxxxxxxxxxxxxxxx 7. Therefore, based on the above observations which originate from the material/information available on record with the AO, it is found that Rs. 2,67,21,631/- was not allowable as exempt income and should have been included in income of the assessee. The income to the tune of Rs. 2,67,21,631/- has escaped assessment for the year under consideration. 8. The requirements to initiate proceedings u/s.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the present writ application is premature, which has been filed against the notice under Section 148 of the Act. Paragraphs no. 15 to 17 of the decision in the case of Chhabil Dass Agarwal (supra) read as under:- 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419], Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s decision in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer and Ors reported in (2003) 1 SCC 72 and has argued that the petitioner could raise the objection before the Assessing Officer and therefore, the writ application was premature. She has also drawn our attention to a Division Bench decision of Punjab Haryana High Court dated 02.06.2022 rendered in CWP No. 9142 of 2022 (Anshul Jain Vs. Principal Commissioner of Income Tax) to contend that as the proceedings have not even been completed by the statutory authority, the writ Court should not interfere at such premature stage. She has contended that it is not a case of exercise of jurisdiction which is not vested with the authority for issuance of notice under Section 148 of the Act. She would argue that no reason exists for interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, at this stage when the proceedings initiated are yet to be completed with by a statutory authority. She has also drawn our attention to the Supreme Court's decision dated 02.09.2022 in the case of Anshul Jain Vs. Principal Commissioner of Income Tax (supra), relevant portion of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the information received from 'other Income Tax authority' the petitioner's capital gain of Rs. 2,67,97,850/- during the previous relevant Assessment Year-2018-19, was not shown properly in the Income Tax Return. The said Annexure with the notice under Section 148A(b) of the Act did not at all disclose as to what information was in fact there with Assessing Officer suggesting that the said capital gain during the Assessment Year-2018-19 was not shown in the ITR. In our view, it was incumbent upon the Assessing Officer to disclose the nature of information received by it for due compliance of the requisite condition prescribed under Section 148A(b) of the Act. The submission that this writ application is premature having been filed against issuance of notice under Section 148 of the Act is not acceptable to this Court in the admitted facts and circumstances of this case. The power of re-assessment/re-computation vested in the Assessing Officer under Section 148 of the Act, cannot be undertaken lightly or casually as it amounts to reopening of closed transactions. Apparently, with a view to streamline and simplify the procedure of exercise of jurisdiction under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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