Nidhi Bindal vs Income Tax Officer Ward 36(1), ...
2022 Latest Caselaw 2642 Del

                              $~18
                              *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              +      W.P.(C) 12363/2022
                                     NIDHI BINDAL                                       ..... Petitioner
                                                         Through:     Mr.Ved Kumar Jain with Mr.Nichay
                                                                      Kantoor and Ms.Richa Mishra,
                                                                      Advocates.
                                                         versus

                                     INCOME TAX OFFICER WARD 36(1), DELHI & ANR. .....
                                                                            Respondents
                                                         Through:     Mr.Kunal Sharma, Sr.Standing
                                                                      Counsel for Revenue with Ms.Zehra
                                                                      Khan and Mr.Shubhendu
                                                                      Bhattacharya, Advocates.

                              %                         Date of Decision: 26th August, 2022
                              CORAM:
                              HON'BLE MR. JUSTICE MANMOHAN
                              HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
                                                           JUDGMENT

MANMOHAN, J (Oral):

C.M.No.37116/2022 Exemption allowed, subject to all just exceptions. Accordingly, the application stands disposed of. W.P.(C) No.12363/2022 & C.M.No.37115/2022

1. Present writ petition has been filed challenging the notice dated 19th March, 2022 issued under Section 148A(b) of the Income Tax Act, 1961 ('the Act), order dated 30th March, 2022 passed under Section 148A(d) of the Act and the impugned notice dated 30th March, 2022 issued under

Signature Not Verified Digitally Signed By:JASWANT SINGH RAWAT Signing Date:29.08.2022 19:40:32 Section 148 of the Act by the Respondent No.1 for the assessment year 2015-16.

2. Learned counsel for the Petitioner states that the impugned notice dated 19th March, 2022 has been issued in contravention of Section 148A(b) of the Act as it required the Petitioner to file reply by 25th March, 2022 i.e. within six days despite the fact that Section 148A(b) mandatorily directs the respondents to give a minimum time of seven days to the assessee to file its reply.

3. Learned counsel for the Petitioner states that the Petitioner had requested for seven days' adjournment on 25th March, 2022 and two days adjournment on 28th March, 2022 on the ground that she had permanently moved to United Arab Emirates (UAE). He states that subsequently the Petitioner filed a detailed reply on merits (along with supporting evidences) on 29th March, 2022 i.e. prior to passing of the order by the Respondents and the said facts are evident from the income tax portal.

4. Learned counsel for the Petitioner states that the impugned order dated 30th March, 2022 has been passed without considering the detailed reply dated 29th March, 2022 and voluminous documents/evidences filed by the Petitioner in response to show cause notice dated 19th March, 2022. He states that the Respondent No.1 has erroneously observed in the impugned order dated 30th March, 2022 that Petitioner had not submitted any response till the date of passing of order.

5. This Court is of the view that since the impugned show cause notice required the Petitioner to file the reply by 25th March 2022 i.e. within six days despite the fact that Section 148A(b) mandatorily requires to give a minimum time of seven days to the assessee to file its reply, the

Signature Not Verified Digitally Signed By:JASWANT SINGH RAWAT Signing Date:29.08.2022 19:40:32 Respondents failed to fulfil the criterion of 'not less than seven days' as provided in clause (b) of Section 148A of the Act.

6. In this case, as the impugned order under Section 148A(d) of the Act had been passed after receipt of the reply of the Petitioner, this Court is of the view that Assessing Officer should have considered the reply as the same was available on record. By not considering the reply of the Petitioner dated 29th March, 2022, the mandate of Section 148A(c) of the Act has been violated as it casts a duty on the Assessing Officer, by using the expression 'shall', to consider the reply of the Petitioner/Assessee in response to the notice under Section 148A(b) before making an order under Section 148A(d) of the Act.

7. Consequently, the impugned order dated 30th March, 2022 issued under Section 148A(d) of the Act and the notice dated 30th March, 2022 issued under Section 148 of the Act are set aside. The Respondents are directed to take the submission filed on 29th March, 2022 on record and pass a reasoned order in accordance with law within eight weeks. With the aforesaid directions, present writ petition along with pending application stands disposed of.

MANMOHAN, J

MANMEET PRITAM SINGH ARORA, J AUGUST 26, 2022 KA

Signature Not Verified Digitally Signed By:JASWANT SINGH RAWAT Signing Date:29.08.2022 19:40:32