Balvantbhai Devabhai Umrigar vs The Assistant Commissioner Of ...
2023 Latest Caselaw 6152 Guj

                                                                                 NEUTRAL CITATION




    C/SCA/19276/2019                             JUDGMENT DATED: 22/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19276 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                    BALVANTBHAI DEVABHAI UMRIGAR
                                Versus
              THE ASSISTANT COMMISSIONER OF INCOME TAX
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Appearance:
MR MANISH J SHAH(1320) for the Petitioner(s) No. 1
MR.NIKUNT RAVAL, ADVOCATE FOR MRS KALPANAK RAVAL(1046) for
the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
          and
          HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 22/08/2023

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

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C/SCA/19276/2019 JUDGMENT DATED: 22/08/2023

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1 Rule returnable forthwith. Learned counsel

appearing for the respondent waives service of notice of

rule on behalf of the respondent. With consent of the

learned advocates appearing for the respective parties,

the matter is taken up for final hearing today.

2 By way of this petition under Article 226 of the

Constitution of India, the petitioner has prayed for a writ

of certiorari or other appropriate writ for quashing and

setting aside the notice under Section 148 of the Income

Tax Act. A further prayer is made for a direction that the

respondent may not proceed further in pursuance of the

notice so given.

3 Facts in brief would indicate that for the Assessment

Year 2012-2013, the petitioner has filed a return on

06.03.2013 showing income of Rs.24,38,960/-, tax and

interest whereon was Rs.5,12,435/- as against which the

petitioner had paid an advace tax of Rs.5 lakhs and a TDS

of Rs.1,30,323/- making a total payment of Rs.6,30,323/-.

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In the computation of income, the petitioner had capital

gain of Rs.10,51,253/- from the sale of property of

Rs.1,01,00,000/- after deducting therefrom indexed cost

of Rs.13,73,148/- etc. It appears that on 30.03.2019, a

notice under Sec.148 of the Income Tax Act was issued to

the petitioner stating that he had reason to believe that

income chargeable to tax has escaped assessment.

Thereafter, the Assessing Officer, by a letter dated

02.05.2019, opined that information had been received

from the Income Tax Officer, Ward No.9(2), Ahmedabad,

which revealed that the assessee had given an unsecured

loan of Rs.10 lakhs to Bhumi Corporation during the year

under consideration. This notice is the subject matter of

challenge.

4 Mr.Manish Shah, learned counsel appearing for the

petitioner, would draw the Court's attention to para 4 of

the notice which indicates that it was the stand of the

authorities that on verification of the information

available from the records of the assessee, it was found

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C/SCA/19276/2019 JUDGMENT DATED: 22/08/2023

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that the assessee had given an unsecured loan of Rs.10

lakhs to Bhumi Corporation, for which, he had not

furnished fresh evidence to prove the genuineness of the

transaction. Reading the aforesaid para of the notice, he

would also submit that the authorities had not found

justifiable reasons on the basis of income declared by the

assessee and looking to the withdrawal of the household

expenses, they are to be satisfied as to how the loan in

question could have been advanced.

4.1 Inviting the Court's attention to the objections filed

by the petitioner, especially objection No.3, Mr.Shah,

learned counsel, would submit that there was infact no

material available and there was justifiable reason to

indicate on the basis of the long term capital gain

statement, copies of the documents of the land in

question, copies of the ledger account of Bhumi

Corporation etc., to suggest that the loan was advanced

to M/s.Bhumi Corporation and that the transaction was

genuine. He would also invite the Court's attention to the

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C/SCA/19276/2019 JUDGMENT DATED: 22/08/2023

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Statement of Accounts to indicate the worth of the

petitioner.

5 Mr.Nikunt Raval, learned counsel appearing for

Mrs.Kalpana Raval, learned counsel for the respondent -

revenue, would vehemently oppose the petition and

justify the fact that there were enough reasons available

to suggest that there was no sufficient evidence to prove

the genuineness of the transaction.

6 Having considered the submissions made by the

learned counsels appearing for the respective parties and

having considered the objections so raised by the

petitioner and which have been set out herein, and in

light of the decision of the Division Bench of this Court in

the case of Jayesh Govindbhai Balar vs. Income Tax

Officer, Ward-3(2)(4), Surat., rendered in Special Civil

Application No. 994 of 2016, in absence of any evidence

and fresh material on record, we find that the reasons

indicated by the author of the notice are vague and

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C/SCA/19276/2019 JUDGMENT DATED: 22/08/2023

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presumptuous. On this ground alone, the impugned

notice is quashed and set aside. The petition is allowed,

accordingly. Rule is made absolute.

(BIREN VAISHNAV, J)

(BHARGAV D. KARIA, J) BIMAL