M.S.SAJITHA MOITHEEN, vs. NATIONAL FACELESS ASSESSMENT CENTRE (NAFAC),

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WP(C)/13034/2023HC KeralaKLHC01028564202324 November 2023Author: HONOURABLE MR. JUSTICE D. K. SINGH5 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the order passed under Section 148A(d) of the Income Tax Act, 1961, was not without jurisdiction. The Court stated that it could not assume the powers of the assessing authority or the appellate authority if the impugned order and notice were within the powers conferred upon those authorities. Given the limited scope of judicial review in quasi-judicial proceedings under the Act, the Court found the writ petition to be not maintainable. The petitioner was granted fifteen days to file her response to the notice under Section 148 and to file her income tax return. The Assessing Officer was permitted to proceed with the finalization of the assessment if the petitioner failed to comply.

What were the facts?

The petitioner, M.S. Sajitha Moitheen, filed a writ petition challenging an order under Section 148A(d) and a notice under Section 148 of the Income Tax Act, 1961. The Assessing Officer believed that income amounting to Rs. 43,45,000/- had escaped assessment for the assessment year 2019-20. A notice under Section 148 was issued on March 27, 2023. Following the petitioner's objections, an order under Section 148A(d) was passed, concluding that the assessment for the year 2019-20 needed to be reopened. The petitioner contended that no income had escaped assessment and that she had adequately explained the source of investment for property acquisition, which was funded by her husband. The notice under Section 148 for filing a return for re-assessment was subsequently issued.

What were the issues?

1. Whether the order passed under Section 148A(d) of the Income Tax Act, 1961, is without jurisdiction, thereby rendering the subsequent notice under Section 148 invalid. Assessee's contention: The petitioner argued that no income had escaped assessment for the assessment year 2019-20 and that she had provided a satisfactory explanation for the source of funds for property acquisition, which were provided by her husband. The impugned order and notice were therefore unjustified. Revenue's contention: The judgment does not explicitly record the revenue's contentions. However, the revenue's position is implicit in the issuance of the notice and the order under Section 148A(d), indicating a belief that income had escaped assessment.

Which sections of the Income-tax Act were involved?

Section 148A(d),Section 148

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 24TH DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945 WP(C) NO. 13034 OF 2023 PETITIONER/S: M.S.SAJITHA MOITHEEN, AGED 43 YEARS NO 174, THAYYIL KACHINIKKAD, MAKKARAPPARAMBIL, PERINTHALMANNA, MALAPPURAM DISTRICT- 676507. BY ADVS. LATHA ANAND S.VISHNU (ARIKKATTIL) M.N.RADHAKRISHNA MENON RESPONDENT/S: 1 NATIONAL FACELESS ASSESSMENT CENTRE (NAFAC), MAYUR BHAWAN, CONNAUGHT LANE, BARAKHAMBA ROAD, NEW DELHI, PIN-110 001, REPRESENTED BY THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (NAFAC). 2 INCOME TAX OFFICER, WARD I & TPS, TIRUR, NO. 20/1240, TARIFF BAZAR, TOWN HALL ROAD, TIRUR- 676101 BY ADVS. C.S.MANU CHRISTOPHER ABRAHAM OTHER PRESENT: CHRISTOPHER ABRAHAM-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13034 OF 2023 2

J U D G M E N T The present writ petition has been filed questioning Exts.P3 and P4 order and notice passed under Sections 148A(d) and 148, respectively, of the Income Tax Act, 1961 (“Act”, for short).

2.

On the basis of the relevant information, the assessing officer was of the view that the income in respect of transactions of the petitioner for Rs.43,45,000/- has escaped assessment. Notice under Section 148 of the Act was issued on 27.3.2023 and after considering the objections of the petitioner, an order under Section 148A(d) came to be passed.

3.

The petitioner’s case was that no income had escaped assessment in respect of the assessment year 2019-20 and she had satisfactorily explained the source of investment for acquisition of the property in her name. The funds were made available by her husband. As per the order impugned in Ext.P3 passed under clause(d) of WP(C) NO. 13034 OF 2023 3 Section 148A of the Act, the assessing authority was of the opinion that the assessment of the petitioner for the year 2019-20 required to be re- opened.

4.

The petitioner thereafter was issued notice under Section 148 in Ext.P4 to file return of her income for the assessment year 2019-2020 for re-assessment. The petitioner has approached this Court against the said notice.

5.

The impugned order in Ext.P3 passed under Section 148A(d) cannot be said to be without jurisdiction. This Court cannot assume the power of the assessing authority or the appellate authority, if the order or the notice impugned are within the power conferred under the concerned authorities.

6.

As per the order passed under Section 148A(d) of the Act, the assessing authority is of the opinion that the income of the petitioner has escaped assessment and therefore, the assessment order for the assessment year 2019-20 required to WP(C) NO. 13034 OF 2023 4 be reopened. I do not find that the said order can be said to be without jurisdiction.

7.

Considering the limited scope of the judicial review and the quasi-judicial proceedings taken by the authorities under the Act, I am of the considered view that the present writ petition is not maintainable and, therefore, the same is dismissed. The petitioner is granted fifteen (15) days time to file her response to the notice issued under Section 148, Ext.P4, and file return of her income as directed. In case the petitioner does not file return of income as per the notice issued under Section 148, Ext.P4, the assessing authority is free to proceed for finalisation of the assessment, in accordance with law. Pending interlocutory application, if any, in the present writ petition stands dismissed. DINESH KUMAR SINGH

JUDGE jg

WP(C) NO. 13034 OF 2023 5

Appendix — schedule of exhibits
APPENDIX OF WP(C) 13034/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED 07.02.2023 ISSUED TO THE PETITIONER UNDER CLAUSE (B) OF SECTION 148A OF THE ACT Exhibit P2 TRUE COPY OF THE UNDATED REPLY OF THE PETITIONER ALONG WITH THE ANNEXURES Exhibit P3 TRUE COPY OF THE ORDER DATED 27.03.2023 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 148A(D) OF THE ACT Exhibit P4 TRUE COPY OF THE NOTICE DATED 27.03.2023 UNDER SECTION 148 OF THE ACT RESPONDENT EXHIBITS Exhibit R2 (a) Judgment of the Supreme Court in Anshul Jain V Principal Commissioner of Income Tax and Another , 449 ITR 256 (SC) Exhibit R2(b) judgment of the Punjab and Haryana High Court in Anshul Jain V Principal Commissioner of Income Tax and Another, 449 ITR 251 (Punjab and Haryana High Court) Exhibit R2(c) Judgment of the Kerala High Court in W.P.(C) No.37527 of 2022 in the case of M/s Viswabharathi Medicals V Income Tax Officer

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