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TMI Blog2023 (12) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act issued by the respondent No.1. Both, the order and the notice are illegal, without jurisdiction, arbitrary, in violation of the principles of natural justice. 3. Learned counsel for the petitioner contended that despite absence of any information suggesting that income chargeable to tax has escaped assessment, the impugned order under Section 148A(d) has been passed resulting in issuance of notice under Section 148 of the Act. He further argued that without taking into account the reply submitted by the petitioner/assessee, the impugned order / notice have been passed. Thirdly, learned counsel for the petitioner submitted that no proper opportunity of hearing was afforded to the petitioner before passing such an order. 4. Learned counsel for the petitioner has placed reliance on the judgment of the Apex court in the matter of Union of India & Ors. vs. Ashish Agarwal, 2023 (1) SCC 617; Red Chilli International Sales vs. Income Tax Officer and Anr., 2023 SC OnLine SC 237; judgment passed by the High of Madhya Pradesh at Indore in case of Principal Commissioner of Tax-I vs. Shri Pukhraj Soni passed in Income Tax Appeal No. 53/2017 dated 06.02.2019 and the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and therefore, the present petition against the show-cause notice is not maintainable in view of the judgment in the case of Union of India vs. Kunishetty Satyanarayan, (2006) 12 SCC 28 for want of alternative efficacious remedy to the petitioner. 7. Heard learned counsel for the parties. 8. The procedure to be followed by the Assessing Officer (AO) before issuance of notice of Income escaping assessment under Section 148A is as follows : (a) Conduct enquiry with respect to the income which has escaped assessment (prior approval of specified authorities might be required in some cases [Section 148A(a)]. (b) Issue a show cause notice to the taxpayer and provide reasonable opportunity of being heard within in the time specified in notice (7 to 30 days) and may be extended from time to time. [Section 148A(b)]. (c) Consider the reply of the taxpayer furnished in response to Point (b). [Section 148A(c)]. (d) Decide whether it is a fit case for issue of notice under Section 148 by passing an order with the prior approval of specified authority based on the evidence available and reply furnished by the taxpayer). [Section 148A(d)]. 9. The aforesaid steps/procedure have been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner. In the matter of Ashish Agrawal (supra), the Apex Court has laid down the procedure to be adopted under the newly added Section 148A of the Act. The relevant paras are as under:- ''25.1 The respective impugned section 148 notices issued to the respective assessees shall be deemed to have been issued under section 148A of the IT Act as substituted by the Finance Act, 2021 and treated to be showcause notices in terms of section 148A(b). The respective assessing officers shall within thirty days from today provide to the assessees the information and material relied upon by the Revenue so that the assessees can reply to the notices within two weeks thereafter; 25.2 The requirement of conducting any enquiry with the prior approval of the specified authority under Section 148A(a) be dispensed with as a onetime measure vis à vis those notices which have been issued under Section 148 of the unamended Act from 01.04.2021 till date, including those which have been quashed by the High Courts; 25.3 The assessing officers shall thereafter pass an order in terms of section 148A(d) after following the due procedure as required under section 148A(b) in respect of each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be available to the assesses including those available under section 149 of the IT Act and all rights and contentions which may be available to the concerned assessees and Revenue under the Finance Act, 2021 and in law shall continue to be available.'' 12 . In the matter of Red Chilli International Sales (supra), the Apex Court held that the provisions of reopening under the Income Tax Act, 1961 have undergone an amendment by the Finance Act, 2021 and consequently the matter would require a deeper and in-depth consideration keeping in view the earlier case law. Consequently, the Apex Court set aside the order passed by the High Court and held that the petition would be maintainable and the issue would be examined in depth by the High Court if and when it arises for consideration. 13. In the matters of Gian Castings Private Limited Vs. Central Board of Direct Taxes and others, CWP No.9142 of 2022 dated 02.06.2022, and Anshul Jain Vs. Principal Commissioner of Income Tax and another, CWP 10219 of 2022 , the Punjab and Haryana High Court at Chandigarh while dealing with a similar issue held that where the proceedings have not even been concluded by the statutory authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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