Bombay High Court
Nitinkumar Rishiram Agrawal vs Joint Commissioner Of Income Tax ... on 22 March, 2022
Bench: R.D. Dhanuka, S. G. Mehare
1 wp 3699.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3699 OF 2022
Nitinkumar S/o Rishiram Agrawal,
Age : 48 Years, Occu. : Business,
R/o 343/F-17, Near Jindal House,
Sambhaji Nagar, Bus Stand Road,
Jalna, Tq. and Dist. Jalna. .. Petitioner
Versus
1. Joint Commissioner of Income Tax,
Range - 1, Aurangabad.
2. Income Tax Officer,
Ward - 1, Jalna,
Tq. and Dist. Jalna.
3. Income Tax Officer,
National Faceless Assessment
Centre, Delhi. .. Respondents
Shri Raviraj R. Chandak, Advocate for the Petitioner.
Shri Alok Sharma, Advocate for Respondent Nos. 1 to 3.
CORAM : R. D. DHANUKA AND
S. G. MEHARE, JJ.
DATE : 22ND MARCH, 2022.
ORAL JUDGMENT (Per R. D. Dhanuka, J.) :-
. Rule. Mr. Alok Sharma, the learned counsel waives service
for respondent Nos. 1 to 3. Rule is made returnable forthwith.
2. By this petition filed under Article 226 of the Constitution
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of India, the petitioner has impugned the notice dated 31.03.2021
issued by the respondent No. 2 U/Sec. 148 of the Income Tax Act,
1961 (for short "I. T. Act") and also order dated 01.03.2022
passed by the respondent No. 3 thereby rejecting the objection
filed by the petitioner.
3. On 28th March, 2018, the petitioner filed his return of
income tax for the assessment year 2016-2017. On 31.03.2021,
the respondent No. 2 issued notice U/Sec. 148 of the I. T. Act to
the petitioner for reassessment of the assessment year 2016-
2017. On 01.04.2021 Finance Act, 2021 came into force and
entire mechanism of reopening of assessment U/Sec. 147 to 151
of the Income Tax Act has been changed.
4. The respondent No. 2 supplied the copy of the reasons
recorded before issuance of the impugned notice to the petitioner.
On 24.02.2022 the petitioner filed objection to the reasons
recorded and specifically raised objection regarding tenability of
the proceedings. On 01.03.2022, the respondent No. 3 rejected
the objection filed by the petitioner. On 05 th March, 2022, the
petitioner filed the present petition.
5. The learned counsel for the petitioner invited our attention
to the reasons recorded by the respondent No. 2. In the said
reasons the respondent No. 2 relied upon the communication
from ACIT, Central Circle - 4(4), Mumbai. The assessing officer
of Shri Renukamata Multistate Co-op. Urban Bank Credit
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Society Ltd. based on the said information, the respondent No. 2
issued notice U/Sec. 148 of the I. T. Act upon the petitioner.
6. The learned counsel for the petitioner also invited our
attention to Section 153A/153C of the I. T. Act and would submit
that, case of the petitioner would fall U/Sec. 153-C of the I. T. Act
and not U/Sec. 147 of the I. T. Act. He submits that, the entire
proceeding initiated by the respondents is thus without
jurisdiction.
7. The learned counsel for the petitioner invited our attention
to the impugned order passed by the respondent No. 3 on 01 st
March, 2022 and would submit that, though various objections
were raised by the petitioner to the reasons supplied to the
petitioner, the respondent No. 3 did not consider any of the
objections raised by the petitioner. The learned counsel for the
petitioner placed reliance on the judgment dated 15th February,
2022 of this Court in a case of Tata Capital Financial Services
Limited Vs. Assistant Commissioner of Income Tax Circle 1(3)(1)
and others in Writ Petition No. 546 of 2022 and more
particularly paragraph No. 8. This Court in the said judgment
has formulated various guidelines to be followed by the assessing
officer while dealing with the objections raised by the assessee.
It is held that while communicating the reason for re-opening the
assessment, a copy of the standard form/request sent by the
Assessing Officer for obtaining approval of the Superior Officer
should itself be provided to the assessee. He submits that, this
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Court has categorically held that the order disposing the
objections should deal with each objections and give proper
reasons for the conclusion.
8. Mr. Alok Sharma, the learned counsel for respondents on
the other hand would submit that, in the impugned order the
respondent No. 3 has recorded reasons and has rightly rejected
the objections raised by the petitioner after adverting to Section
147 and 153 of the I. T. Act. Thus no interference is warranted in
the impugned order passed by the respondent No. 3.
9. We have perused the reasons annexed by the respondent
No. 2 to the petition.
REASONS AND CONCLUSION
10. The petitioner has raised specific objection to the reasons
supplied by the respondent in respect of maintainability of the
notice issued by the respondent No. 2 U/Sec. 148 of the I. T. Act
and has specifically contended that, the case of the petitioner
would fall under Section 153C of the I. T. Act and not U/Sec. 147
of the I. T. Act.
11. A perusal of the impugned order clearly indicates that, in
para No. 5 of the impugned order, the respondent No. 3 has
simplicitor quoted Section 153C of the I. T. Act and has held that
in view of the said section, it was clear that, assessing officer had
reopened case of the petitioner correctly as per the provisions of
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Section 147 of the I. T. Act. In our view, there are no reasons
recorded by the respondent No. 3 in the impugned order.
Various objections raised by the petitioner are required to be
answered by sufficient and cogent reasons. The respondent No. 3
has not given any reasons while dealing with the objection and
passing the impugned order.
12. This Court in a case of Tata Capital Financial
Services Limited Vs. Assistant Commissioner of Income Tax
Circle 1(3)(1) and others (supra) after adverting to various
judgments of various Courts including the judgment of the
Hon'ble Supreme Court in a case of Commissioner of Income Tax Vs.
Vasisth Chay Vyapar Ltd. reported in [2019] 410 ITR 244 (SC) has
formulated guidelines to be followed by the revenue while
dealing with the objection raised by the assessee to the reasons
furnished by the Assessing Officer. It is held by this Court that,
if the reasons make reference to any other document or a letter
or a report, such document or letter or report should be enclosed
to the reasons. The order disposing the objections should deal
with each objections and give proper reasons for the conclusion.
In our view, the impugned order is in total violation of the
principles laid down by this Court in a case of Tata Capital
Financial Services Limited Vs. Assistant Commissioner of
Income Tax Circle 1(3)(1) and others (supra). The Assessing
Officer has to deal with each and every objection raised by the
petitioner by recording reasons. The respondent No. 3, however,
in this case has passed the impugned order in a very casual way.
6 wp 3699.22
13. In view of the above, we pass the following order.
ORDER
A. The impugned order dated 01.03.2022 passed by the
respondent No. 3 annexed at Exhibit - E of the writ
petition is quashed and set aside.
B. The proceedings are restored before the respondent No. 3
for deciding objections raised by the petitioner to the
reasons supplied by the respondent No. 2 while
deciding the matter afresh and in accordance with law and
after complying with the principles laid down by this Court
in a case of Tata Capital Financial Services Limited Vs.
Assistant Commissioner of Income Tax Circle 1(3)(1) and
others (supra) without being influenced by the observations
made and conclusions drawn in the impugned order dated
01.03.2022.
C. The respondent No. 3 shall decide the matter within a
period of three (03) weeks from the date of publication of
this order and shall communicate the order that would be
passed to the petitioner within a period of one (01) week
from the date of order.
D. If the order that would be passed by the respondent No. 3
is adverse to the interest of the petitioner, the petitioner
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may file appropriate proceedings as permissible under law.
E. The writ petition is allowed in terms of prayer clause "D".
Rule is made partly absolute in aforesaid terms. No order
as to costs.
F. If the objection raised by the petitioner is rejected by the
respondent No. 3, no adverse order shall be passed by the
respondent No. 3 for a period of four (04) weeks from the
date of communication of the order.
[S. G. MEHARE, J.] [R. D. DHANUKA, J.]
bsb/March 22
