Gujarat High Court

Ninaben Tusharbhai Shah vs Income Tax Officer, Ward 5(3)(1), ... on 19 February, 2024

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

                                                                                   NEUTRAL CITATION




     C/SCA/916/2023                              JUDGMENT DATED: 19/02/2024

                                                                                    undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 916 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
================================================================

1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
                      NINABEN TUSHARBHAI SHAH
                               Versus
             INCOME TAX OFFICER, WARD 5(3)(1), AHMEDABAD
================================================================
Appearance:
MR. HARDIK V VORA(7123) for the Petitioner(s) No. 1
MR.VARUN K.PATEL(3802) for the Respondent(s) No. 1
===============================================================
    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                             Date : 19/02/2024

                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned advocate Mr.Hardik V. Vora

for the petitioner and learned Senior Standing

NEUTRAL CITATION

C/SCA/916/2023 JUDGMENT DATED: 19/02/2024

undefined

Counsel Mr.Varun K. Patel with learned

advocate Mr.Dev Patel for the for the

respondent.

2. Rule, returnable forthwith. Learned Senior

Standing Counsel Mr.Varun Patel waives service

of notice of rule for and on behalf of the

respondent.

3. Having regard to the controversy involved

in the petition in narrow compass, the same is

taken up for final hearing with consent of

learned advocates for the respective parties.

4. By this petition under Article 226 of the

Constitution of India, the petitioner has

challenged the order dated 26th March, 2022

passed under Section 148A(d) of the Income Tax

Act, 1961 (for short 'the Act') as well as the

notice dated 29th March, 2022 issued under

NEUTRAL CITATION

C/SCA/916/2023 JUDGMENT DATED: 19/02/2024

undefined

Section 148 of the Act.

5. The brief facts of the case are as under :

5.1. The petitioner is an individual and

filed her return of income for Assessment Year

2018-19 on 03.08.2018 declaring total income

at Rs.8,80,390/-. The return of the income was

processed under Section 143(1) of the Act.

5.2. A notice dated 24th March, 2022 under

Section 148A(b) of the Act which was digitally

signed at 03:31 PM on 26th March, 2022 was

issued to the petitioner requiring the

petitioner to submit response on 24th March,

2022.

5.3. It appears that thereafter the

petitioner could not file the reply as no time

was granted to the petitioner to file the

NEUTRAL CITATION

C/SCA/916/2023 JUDGMENT DATED: 19/02/2024

undefined

reply by the respondent-Assessing Officer and

the impugned order under Section 148A(d) was

passed on 26th March, 2022 and thereafter, the

impugned notice under Section 148 was issued

on 29th March, 2022.

6.1. Learned advocate Mr.Hardik Vora for

the petitioner submitted that the impugned

notice under Section 148A(b) of the Act was

issued as the Assessing Officer was required

to give opportunity to the petitioner to file

reply to such notice within a period of not

less than seven days time from the date of

issuance of notice, however, the notice under

Section 148A(b) of the Act has not provided

any time to the petitioner. It was pointed out

that though the notice is dated 24th March,

2022, the same was digitally signed by the

Assessing Officer on 26th March, 2022.

NEUTRAL CITATION

C/SCA/916/2023 JUDGMENT DATED: 19/02/2024

undefined

6.2. It was pointed out that in the

impugned order dated 26th March, 2022 passed

under Section 148A(d) of the Act, the

Assessing Officer, in paragraph No.6 thereof,

has stated that the petitioner has not filed

the reply even after lapse of more than seven

days which is not true and correct as no time

was granted in the notice under Section

148A(d) to the petitioner to file reply and

the order under Section 148A(d) was passed

within two days.

6.3. It was further pointed out that in the

impugned notice issued under Section 148 of

the Act it was stated that the notice was

issued after obtaining prior approval of

Principal Commissioner of Income Tax,

Ahmedabad (for short 'the PCIT') recorded on

NEUTRAL CITATION

C/SCA/916/2023 JUDGMENT DATED: 19/02/2024

undefined

25th March, 2022 which is prior to even

digitally signing the notice under Section

148A(b) of the Act. It was therefore submitted

that the Assessing Officer has no jurisdiction

to issue notice contrary to the provisions of

the Act.

7. On the other hand, learned Senior Standing

Counsel Mr.Varun Patel for the respondent

submitted that the matter may be remanded back

to the Assessing Officer for granting time to

the petitioner-assessee to submit the reply

and thereafter, after considering the reply of

the petitioner, within reasonable time the

Assessing Officer shall pass a fresh order

under Section 148A(d) of the Act.

8. Section 148A(b) of the Act reads as

under :

NEUTRAL CITATION

C/SCA/916/2023 JUDGMENT DATED: 19/02/2024

undefined

"Section 148A(b): provide opportunity of being heard to the assessee, [***] by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any, as per clause (a)."

9. Having heard the learned advocates for the

respective parties and on bare perusal of the

above provision, it is clear that the

Assessing Officer is required to grant time to

the assessee to submit the reply to the notice

issued under the said provision of not less

than seven days. Admittedly, in the facts of

the case, no time was granted to the assessee

by the Assessing Officer to file reply and

therefore, the notice issued under Section

NEUTRAL CITATION

C/SCA/916/2023 JUDGMENT DATED: 19/02/2024