Calcutta High Court
Suresh Kumar Gupta vs Income Tax Officer Ward 40/1 And ... on 11 May, 2023
OD -2
ORDER SHEET
WPO/933/2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
SURESH KUMAR GUPTA
VS
INCOME TAX OFFICER WARD 40/1 AND ORS
BEFORE:
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date: 11th May, 2023.
Appearance:
Mr. Kapil Goel, Adv.
Mr. Rites Goel, Adv.
...For the Petitioner
Mr. Vipul Kundalia, Adv.
Mr. Soumen Bhattacharjee, Adv.
...For the Respondents
The Court: Heard learned advocates appearing for the parties.
By this writ petition, petitioner has challenged the impugned order
dated 8th April, 2023 under Section 148A(d) of the Income Tax Act, 1961
relating to assessment year 2016-17 inter alia on the ground of violation of
principles of natural justice by not providing any opportunity of personal
hearing in spite of specifically asking for the same by his objection to the
notice under Section 148A(b) of the Act. Petitioner also intends to challenge
the aforesaid impugned order on the ground that since one of the basis of
invoking Section 148 of the Income Tax Act in the case is incriminating
materials found during the search and seizure of a third party and petitioner
contends that if that is so then instead of initiating proceeding under
Section 147, assessing officer concerned should have invoked Section 153C
of the Income Tax Act, 1961. Petitioner in support of his such contention
relies on several orders of different High Courts and on perusal of the same I
find that in none of the cases Hon'ble Court have finally decided in favour of
the assessee by holding that instead of Section 147 of the Act Section 153C
of the Act should have been invoked by the Writ Court in exercise of
Constitutional Writ Jurisdiction. Criteria for invoking the Constitutional
Writ Jurisdiction against any final assessment order or any order under
Section 148A(d) of the Act has been as settled hereunder - either the
impugned assessment order or order under Section 148A(d) has been issued
by an authority having inherent lack of jurisdiction or patently the
procedure adopted in course of the impugned proceeding is contrary to any
provision of law or any procedural irregularity has been committed in course
of the impugned proceeding or there is a patent violation of principles of
natural justice by depriving the petitioner an opportunity of hearing. So far
as merit of any assessment based on evidence and findings is concerned, it
cannot be scrutinized by Writ Court and substitute the same with his own
findings. Appropriate course of remedy against such order are the appellate
forum which is available to the petitioner under the Income Tax Act by
statutory appeals on different levels before different fora like CIT(Appeals),
Tribunal, High Court and Supreme Court. All the judgments referred by
learned Counsel appearing for the petitioner by the Writ Courts, in none of
them this issue of invoking Section 153C instead Section 147 of the Act has
been finally decided, in all those cases only interim orders are there and that
also without any reasons and as such the same are not binding upon this
Court.
So far as providing of opportunity of personal hearing is concerned,
Mr. Bhattacharjee, learned advocate appearing for the respondents shall
take appropriate instruction after verification of record as to whether
opportunity of personal hearing was provided to the petitioner or not before
passing the aforesaid impugned order under Section 148A(d) of the Act.
List this matter for further consideration on 15th May, 2023.
(MD. NIZAMUDDIN, J.)
TR/
