TMI Blog2023 (12) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... d defeated. The object behind Section 148A as is evident from the findings in the fountainhead decision of GKN Driveshafts (India) Ltd.[ 2002 (11) TMI 7 - SUPREME COURT] is to enable the assessee to be informed of the reasons and information suggesting that income chargeable to tax has escaped assessment and, therefore, in turn to empower the assessee to prepare and file an effective reply and thereafter the Assessing Officer to pass an order under Section 148A(d), followed by issuance of notice under Section 148 of IT Act. The object behind insertion of Section 148A by the Legislature w.e.f. 01.04.2021 inter alia appears as follows:- (a) to prevent rampant and casual issuance of notice u/S. 148 by the Revenue; (b) to save unnecessary harassment to the assessee of being subjected to reopening a case under Section 148; (c) to save the Revenue of the time and energy which may be vested pursuing frivolous and fruitless proceedings u/S 148 Considering the aforesaid, normally, the writ Court should not interfere at such premature stage when the proceedings initiated against the assessee are yet to be concluded by the statutory authorities. This Court refrains to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oni passed in Income Tax Appeal No. 53/2017 dated 06.02.2019 and the order passed by the High Court of Madhya Pradesh at Jabalpur in case of Sita Ram Gautam vs. Deputy Commissioner of Income Tax in Writ Petition No. 8416 of 2023 dated 20.04.2023. 5. Per contra, learned counsel appearing for the respondents raised a preliminary objection with respect to maintainability of the petition against the show-cause notice. She further submitted that the reopening of assessment is at the very initial stage and premature and thereafter, as per the provisions of law, there would be various opportunities to the petitioner/assessee to raise their grievance and submit reply. In view of the aforesaid, this petition deserves to be dismissed on this ground alone. 6 . Learned counsel for the respondent further argued that earlier assessment notice issued under Section 148 of the Act was subjected to challenge before the Apex Court on the ground that the same is bad in law in view of the amendment made in the Finance Act, 2021 which has amended the Income Tax Act by introducing new provisions i.e. Sections 147 to 151 of the Act with effect from 1st of April, 2021. It is also argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable and reply furnished by the taxpayer). [Section 148A(d)]. 9. The aforesaid steps/procedure have been followed by the Assessing Officer prior to issuance of notice under Section 148A(d) of the Act and thereafter, only notice has been issued under Section 148 of the Act. 10 . Section 148A has been introduced in the Income Tax Act with effect from 01.04.2021. This Section provides that before issuing notice, the Assessing Officer shall conduct an inquiry and provide an opportunity of being heard to the assessee. After taking into consideration the reply filed by the assessee, the Assessing Officer shall decide by passing an order, whether the case is fit for issuance of notice under Section 148 of the Act and a certified copy of such order passed under Section 148 (A) (d) of the Act along with such notice have to be served upon the assessee. The limitation for issuance of notice under Section 148 is provided in Section 149 of the Act. In normal cases, no notice shall be issued if three years have elapsed from the end of the relevant assessment year. Notice beyond the period of three years from the end of the relevant assessment year can be issued where the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in terms of section 148A(d) after following the due procedure as required under section 148A(b) in respect of each of the concerned assessees; 25.4 All the defences which may be available to the assessee under section 149 and/or which may be available under the Finance Act, 2021 and in law and whatever rights are available to the Assessing Officer under the Finance Act, 2021 are kept open and/or shall continue to be available and; 25.5 The present order shall substitute/modify respective judgments and orders passed by the respective High Courts quashing the similar notices issued under unamended section 148 of the IT Act irrespective of whether they have been assailed before this Court or not. 28. In view of the above and for the reasons stated above, the present Appeals are allowed in part. The impugned common judgments and orders passed by the High Court of Judicature at Allahabad in W.T. No. 524/2021 and other allied tax appeals/petitions, is/are hereby modified and substituted as under: 28.1 The impugned section 148 notices issued to the respective assessees which were issued under unamended Section 148 of the IT Act, which were the subject matter of writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Chandigarh while dealing with a similar issue held that where the proceedings have not even been concluded by the statutory authority, the writ Court should not interfere at such premature stage. It is further held that it is not a case where from a bare reading of notice it can be axiomatically held that the authority has clutched upon the jurisdiction not vested in it. The correctness of order under Section 148A (d) of the Act is being challenged on the factual premise contending that jurisdiction though vested has been wrongly exercised. There is a vexed distinction between jurisdictional error and error of law/fact within the jurisdiction and for rectification or errors statutory remedy has been provided. The order passed by the High Court of Punjab and Haryana has been affirmed by the Apex Court in SLP(C) No.10762 of 2022 order dated 17.06.2022 and SLP No.14823/2022 order dated 02.09.2022 respectively. 14. This Court has culled out the foundational prerequisite of Section 148A of the Act, as aforesaid, to emphasize that if the inquiry contemplated in Section 148A is interpreted to mean a detailed inquiry where both sides can seek and adduce evidence/material (documentar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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