9911796707
TMI Blog2024 (7) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... y of hearings and therefore against the principles of natural justice and fair play; (ii) issue a writ, order or direction in the nature of mandamus directing the respondent nos. 2 & 3 to order de-nova assessment proceedings for the Assessment Year 2017-18, by following the procedures enshrined u/s 148A (a), 148A (b), 148A (c) & 148A (d) in letter and spirit; and allow reasonable opportunities of hearing, adhering to the principles of natural justice and fair play. (2) In this writ petition, petitioner has challenged three notices issued under Section 148A(b) of Income Tax, in respect of Assessment Year 2017-2018. He has also challenged the order under Section 148A (d) passed by Assistant Commissioner, Income Tax (respondent No. 3) and also the approval granted by Principal Chief Commissioner of Income Tax, Kanpur, (respondent No. 2) under Section 151. (3) Petitioner is a private limited company, which owns a Hotel at Rishikesh, District Dehradun known as Hotel Ganga View. According to petitioner, the said Hotel is being managed and operated by another Private Limited Company, namely, ELLBEE Hospitality Worldwide Private Limited (for short 'EHWPL'), as per an operation and mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime for submitting reply was extended by another day vide notice dated 29.03.2024 and, thereafter, one more notice under clause (b) of Section 148A was issued to him, on 03.04.2024, asking the petitioner to submit all documents, on which he relies, on or before 13.04.2024. Thus, petitioner's complaint that time given to him was not sufficient, cannot be accepted. Clause (b) provides that minimum 7 days time has to be given to an assessee to reply to a show cause notice, which may extend to 30 days. Thus, the contention that the notice is bad because 30 days time was not given to petitioner, is without any substance. (6) The first notice under Section 148A(b) of Income Tax Act, 1961 was issued to petitioner on 21.03.2024 calling upon him to submit his reply on or before 28.03.2024, electronically. Alongwith the said notice, not only the information received by Income Tax Department was supplied, but copy of the investigation report was also supplied to the petitioner. In Annexure to the said notice, it is mentioned that petitioner had claimed deduction of the expenses of Rs.2,27,03,505/- against the earning received from EHWPL and no expenses were incurred by the petitioner, so the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. Perusal of the notice dated 21.03.2024, however, reveals that not only the information, but the investigation report was also shared with him. The information disclosed in Annexure to the notice dated 21.03.2024 is extracted below:- ANNEXURE Information has been received in terms of clause (i) to the Explanation 1 to the Section 148 of the Income Tax Act, 1961 (the Act) in your case for the Financial Year 2016-17 relevant to the Assessment Year 2017-18 that, M/s Mandakini Travels & Tours Pvt. Ltd. Had claimed deduction of the expenses of Rs. 2,27,03,505/ against the earning received from Ellbee Hospitality Worldwide Private Limited (PAN-AAACW5645C). As the expenses were already booked by the EHWPL and no expenses were incurred by the assessee MTTPL. So the same is not allowable u/s 37 of the Act. The information was uploaded by the JDIT (OSD) (Inv.) Unit 3(1), Delhi which is reproduced here as under: (9) The subsequent notice issued to petitioner on 03.04.2024 gives details of expenses claimed by petitioner and the expenses claimed by EHWPL during Financial Year 2016-17 and it was alleged that petitioner and EHWPL are running different hotels at Rishikesh and Mussoorie, resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment at the hands of the assessee. 13. True, in reaching such 'decision', the assessing authority is obligated to consider only that material that may be relevant (and not extraneous) and the reply that may have been furnished by the assessee, at the same time, it is not the statutory law that he must record specific/objective reasons to deal with each and every objection, that may be raised. The statute only requires an overall or broad consideration of the reply furnished by the assessee, to reach a 'decision' that it is 'fit case' to initiate reassessment proceedings. To read-recording of exact reasons (to reject any objection), into the language of Section 148A of the Act would be to indirectly reintroduce the requirement to record "reasons to believe", as a precondition to initiate reassessment proceedings. That requirement of law has been specifically and completely, done away. 14. Thus, read in conjunction, Section 148A (b), (c) and (d) would require that assessing authority may not act whimsically or capriciously or on extraneous material or in ignorance of the reply that may have been furnished by the assessee (to the show cause notice issued under Section 148A (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame day. Thus, the Statutory requirement of prior approval is also met, and the order passed by respondent no. 3 cannot be faulted on this count. (13) Learned counsel appearing for revenue contended that the writ petition is premature, which is filed against a notice under Section 148 of the Income Tax Act, and instead of giving reply to the notice, petitioner has approached this Court bypassing the forums available under the Statute. He contended that Income Tax Act is a complete code in itself, which provides remedies and also hierarchy of forums for redressal of grievances of assessee, therefore the writ petition deserves to be dismissed on the ground of alternate remedy. He relied on a judgment rendered by Hon'ble Supreme Court in CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603. Para nos. 14, 16, 17 & 18 of the said judgment are reproduced below:- "14. In Union of India v. Guwahati Carbon Ltd. [(2012) 11 SCC 651] this Court has reiterated the aforesaid principle and observed: (SCC p. 653, para 8) "8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta . In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No. 44 of 2009, in its judgment and order dated 5- 10-2010 [Chhabil Dass Agarwal v. Union of India, WP (C) No. 44 of 2009, decided on 5-10-2010 (Sikk)] ." (14) Learned counsel for the revenue also relied upon a judgment dated 02.09.2022 rendered by Hon'ble Supreme Court in Anshul Jain v. Pr. CIT, (2022) 449 ITR 256. Relevant extract of the said judgment is reproduced below:- "1. What is challenged before the High Court* was the reopening notice under section 148A (d) of the Income-tax Act, 1961. The notices have been issued, after considering the objections raised by the petitioner. If the petitioner has any grievance on merits thereafter, the same has to be agitated before the Assessing Officer in the reassessment proceedings. 2. Under the circumstances, the High Court has rightly dismissed the writ petition." (15) Be that as it may, since this Court does not find any illegality or infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
