Swapna Khaitan vs Union Of India And Ors
2023 Latest Caselaw 126 Cal/2

OD -1

                                ORDER SHEET

                              WPO/3367/2022
                     IN THE HIGH COURT AT CALCUTTA
                    CONSTITUTIONAL WRIT JURISDICTION
                              ORIGINAL SIDE

                             SWAPNA KHAITAN
                                   VS
                         UNION OF INDIA AND ORS.

  BEFORE:
  The Hon'ble JUSTICE MD. NIZAMUDDIN
  Date: 13th January, 2023.
                                                                         Appearance:
                                                           Mr. J.P. Khaitan, Sr. Adv.
                                                             Ms. Arijita Ghosh, Adv.
                                                                 ...For the Petitioner

                                                                Mr. Tilok Mitra, Adv.
                                                                 ...For the Revenue

        The Court: Heard Mr. Khaitan, learned senior counsel appearing for

the petitioner and Mr. Mitra, learned advocate representing the respondent

Income Tax Authority.

By this writ petition, petitioner has challenged the impugned order

dated 28th July, 2022, passed under Section 148A(d) of the Income Tax Act,

1961 on the ground that the same is perverse to the extent on recording in

the aforesaid impugned order that all the materials in the form of enclosure

was furnished to the petitioner along with the notice under Section 148A(b)

of the Act while nowhere it appears from the notice under Section 148A(b) of

the Act that any enclosure was made with the same and on the ground that

respondents could not have proceeded with the impugned proceedings on

the basis of notice under Section 148A(b) of the Act in view of the judgment

of the Hon'ble Supreme Court in the case of Union of India & Ors. vs. Ashish

Agarwal reported in 444 ITR 1 SC and instruction no. 01/2022 dated 11th

May, 2022 issued by the CBDT where it has been specifically mentioned

that within 30 days i.e. by 2nd June, 2022, the assessing officer shall provide

to the assessees, in remaining cases the information and material relied

upon for issuance of extended reassessment notices. Admittedly, the

assessing officer has failed to provide the information and material relied

upon for issuance of extended reassessment notices within 2nd June, 2022.

Mr. Mitra, learned Advocate by the order of this Court dated 5th

January, 2023 was asked to produce relevant record to show that any

enclosure was furnished to the petitioner along with the notice under

Section 148A(b) of the Act and as to whether any information and material

relied upon for the issuance of reassessment notice was furnished to the

assessee to which he could not produce any record in denial of the aforesaid

allegation of the petitioner.

Considering the facts and circumstances of this case, I am of the

considered view that issues raised in this writ petition deserve final

adjudication upon affidavit-in-opposition by the respondents and I am also

of the considered view that the petitioner has been able to make out a prima

facie case for an interim order.

Let affidavit-in-opposition be filed by the respondents within four

weeks from date. Petitioner to file reply thereto, if any, within three weeks

thereafter. List this matter for hearing on 1st May, 2023.

In the meantime, there will be an interim order of stay of all further

proceedings on the basis of the impugned order dated 28th July, 2022,

under Section 148A(d) of the Income Tax Act till 19th May, 2023 or until

further order whichever is earlier.

(MD. NIZAMUDDIN, J.)

TR/