Rahul Rajendra Adhikari vs Income Tax Officer, Panvel
2023 Latest Caselaw 10377 Bom

2023:BHC-AS:30082-DB
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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION
                                   WRIT PETITION NO.12373 OF 2023
            Rahul Rajendra Adhikari                     ....Petitioner
                     V/s.
            Income Tax Officer, Panvel & Ors.  ....Respondents
                                              ----
            Mr. Laukik Palekar a/w. Mr. Hemanshu Patel i/b. Mr. Akshay Zantye for
            petitioner.
            Mr. Ajeet Manwani a/w. Ms. Samiksha Kanani for respondents - Revenue.
                                              ----
                                               CORAM : K. R. SHRIRAM &
                                                          NEELA GOKHALE, JJ.

DATED : 9th OCTOBER 2023

P.C. :

1 Since affidavit in reply is on record, we have taken up this

petition for final hearing at this stage itself.

2 Petitioner is impugning a notice dated 29 th March 2023 issued

under Section 148A(b) of the Income Tax Act, 1961 (the Act), order dated

18th April 2023 under Section 148A(d) of the Act and notice dated

18th April 2023 under Section 148 of the Act on various grounds. The

primary ground is that the notice under Section 148A(b) of the Act has

been issued to a deceased person and even the order under Section

148A(d) of the Act is not a valid order because the sanction under Section

151 of the Act has been granted without application of mind. In paragraphs

5, 6 and 7 of the petition, petitioner has averred that petitioner had

submitted a request via Income Tax Portal to be registered as legal heir of

the assessee, the assessee having expired on 23 rd July 2020. It is stated in

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the petition that the application to be registered as legal heir was made on

10th February 2021. The application was accepted on 11 th February 2021

and all those details are available in the Income Tax Portal. Mr. Palekar

submitted that subsequently on 12th February 2021 petitioner, as legal heir

of the assessee, even filed return of income on behalf of the assessee for

Assessment Year 2020-2021 which is also verifiable from the Income Tax

Portal. The averments in the petition that petitioner had applied as legal

heir of the assessee and the acceptance of the application have not been

denied in the affidavit in reply.

3 In the affidavit in reply, all these averments are conveniently

skirted. The affidavit in reply only deals with the order passed under

Section 148A(d) of the Act. It is stated that no notice under Section 148 of

the Act can be issued without undertaking enquiry before assessment under

Section 148A of the Act. We find this statement having been made twice in

the affidavit in reply, one in paragraph 6.1 and again in paragraph 6.4. It is

rather obvious that no such enquiry has been made because if the Assessing

Officer had only made such an enquiry or even bothered to verify the

Income Tax Portal relating to the deceased assessee, he would have

certainly come to know that the assessee is deceased and had died on

23rd July 2020. The notice under Section 148A(b) of the Act has been

issued without making the enquiry as mandated under Section 148A of the

Act. Therefore, the notice issued under Section 148A(b) of the Act itself

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would be bad in law and has to be quashed and set aside. We find support

for this view in a judgment of this Court in the matter of Dhirendra

Bhupendra Sanghvi V/s. Assistant Commissioner of Income Tax Circle -

27(3) & Ors1.

4 Since the notice under Section 148A(b) of the Act which is the

basic foundation for issuing a notice under Section 148A(d) of the Act itself

is invalid, on this ground alone, the order dated 18 th April 2023 passed

under Section 148A(d) of the Act has to be quashed and set aside.

5 As regards the order issued under Section 148A(d) of the Act

read with notice under Section 148 of the Act, Mr. Palekar also states that

the approval form under Section 151 of the Act which has been made

available alongwith the affidavit in reply also would indicate that there has

been total non application of mind by the Assessing Officer, the

Additional/Joint Commissioner of Income Tax, who recommended grant of

approval as a fit case for issuance of notice under Section 148 of the Act

and also the Principal Commissioner of Income Tax, who granted the

approval on 18th April 2023.

6 We agree that the approval applied for and granted under

Section 151 of the Act exposes the total non application of mind by the

Assessing Officer who applied for the approval, the Additional/Joint

Commissioner of Income Tax who recommended granting of approval and

1. (2023) 151 taxmann.com 541 (Bombay)

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the Principal Commissioner of Income Tax who granted the approval. We

say this because Row 9 of the approval form, copy whereof can be found in

the affidavit in reply, states " time limit for current proceedings covered

under Section 149(1)(b) - for more than 3 years but not more than 10

years". The assessment pertains to Assessment year 2019-2020, whereas the

notice issued under Section 148A(b) of the Act is dated 29 th March 2023

and, therefore, within the three years period.

If we take Row 9 to be correct, then Row 7 indicates " the

quantum of income which has escaped assessment - Rs.3 lakhs ". Therefore,

the notice issued under Section 148A(b) of the Act itself could not have

been issued.

7 Therefore, if only the Assessing Officer who applied for

approval under Section 151 of the Act had only read the approval form, he

would have made the required corrections. If only the Additional/Joint

Commissioner of Income Tax had read the approval form and the order

under Section 148A(d) of the Act and the file relating to the matter, he

would not have recommended granting of approval. So also the Principal

Commissioner of Income Tax. If he had only read the file, he would have

realised that if the time limit for current proceedings is covered under

Section 149(1)(b) of the Act, i.e., for more than 3 years but not more than

10 years, he has no power to grant approval and the approval should have

been granted by the Principal Commissioner of Income Tax.

Gauri Gaekwad
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                       8                In the circumstances, the order dated 18th April 2023 under

Section 148A(d) of the Act and the consequent notice also dated 18 th April

2023 under Section 148 of the Act are hereby quashed and set aside.

                       9                Petition disposed.




                       (NEELA GOKHALE, J.)                                  (K. R. SHRIRAM, J.)




Signed by: Gauri A. Gaekwad
                        Gauri Gaekwad
Designation: PS To Honourable Judge
Date: 11/10/2023 12:03:01