BINDUBEN CHANDRAKANT SHAH vs. THE INCOME TAX OFFICER, WARD 5(3)(1)

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SCA/4914/2022HC GujaratGJHC24015055202215 November 2022Bench: HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI,HONOURABLE MRS. JUSTICE MAUNA M. BHATT4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the petition was premature and chose not to entertain it at that stage. The court directed the Assessing Officer to dispose of the objections raised by the petitioner within two weeks from the date of receipt of a copy of the order, after providing the petitioner an opportunity of being heard in accordance with law. The court further directed that if any adverse order is passed, no effect shall be given to it by the Revenue for two weeks, during which period the petitioner would be at liberty to take legal recourse. The High Court explicitly stated that it had not expressed any view on the merits of the matter, and it shall be decided on its own strength.

What were the facts?

The petitioner, Binduben Chandrakant Shah, a share trader, filed her income tax return for Assessment Year 2015-16 declaring nil income. The Income Tax Officer, Ward 5(3)(1) issued a notice dated 31.03.2021 under Section 148 of the Income Tax Act to reopen the assessment. The reasons for reopening, received by the petitioner on 21.01.2022, alleged bogus Long Term Capital Gains (LTCG) on penny stock transactions amounting to Rs. 1,35,65,738/-. The petitioner raised objections on 07.02.2022. As these objections were not disposed of, the petitioner approached the Gujarat High Court challenging the notice itself. The High Court issued notice and granted protection. The Revenue contended that the petition was premature as the objections had not been disposed of.

What were the issues?

1. Whether the Special Civil Application challenging the notice under Section 148 of the Income Tax Act is maintainable when the objections raised by the assessee against the reopening notice have not yet been disposed of by the Assessing Officer? The assessee argued that it is not unknown for courts to direct the disposal of objections pending a petition, especially when the respondent is unlikely to take a different stance. The assessee relied on the practice of the court in similar matters. The revenue contended that the petition is premature and not maintainable because the objections have not been disposed of by the Assessing Officer. The revenue argued that all other averments in the petition are unsustainable.

Which sections of the Income-tax Act were involved?

Section 148

AI-generated summary — verify with the full judgment below

C/SCA/4914/2022 ORDER DATED: 15/11/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 4914 of 2022 ========================================================== BINDUBEN CHANDRAKANT SHAH Versus THE INCOME TAX OFFICER, WARD 5(3)(1) ========================================================== Appearance: MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1 MR.VARUN K.PATEL(3802) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 15/11/2022

ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. The petition under Article 226 of the Constitution of India challenges the notice dated 31.03.2021 issued by the respondent under Section 148 of the Income Tax Act (hereinafter referred to as ‘the Act’) seeking to reopen the income tax assessment for the assessment year 2015-16. 2. The petitioner is engaged in the business of trading in shares who has filed return of income for the year under consideration declaring the total income as nil on 21.09.2015. The notice dated 31.03.2021 was received seeking to reopen the case of the petitioner. It is the say of the petitioner that Page 1 of 4

C/SCA/4914/2022 ORDER DATED: 15/11/2022 the reasons for reopening had been received on 21.01.2022 which were broadly on the count that the petitioner has claimed bogus LTCG on penny stock transaction and the petitioner has claimed the amount of Rs. 1,35,65,738/- on penny stock transaction during the year under consideration. 2.1. The objections have been raised on 07.02.2022, however, they were not disposed of and the patience of the petitioner had veered off, therefore, he approached this Court seeking to challenge the impugned notice itself with the following prayers:- “(a) quash and set aside the impugned notice at ANNEXURE "A ” to this petition; (b) pending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the notice at ANNEXURE “A" to this petition and stay the further proceedings for the Assessment Year 2015-16; (c) any other and further relief deemed just and proper be granted in the interest of justice; (d) to provide for the cost of this petition.” 3. This Court (Mr. J.B.Pardiwala, J. as his lordship then was and Ms. Nisha M. Thakore, J.) issued notice on 08.03.2022 granting protection to the petitioner in terms of para 7(b). Page 2 of 4

C/SCA/4914/2022 ORDER DATED: 15/11/2022 3.1. On the returnable date, learned Senior Standing Counsel Mr. Varun Patel appeared and filed the basic reply where he questioned the very maintainability of this petition. According to him, objections have not as yet been disposed of, the petition is premature. All other averments, according to this reply, are not sustainable. 4. We have heard learned Senior Advocate Mr. Tushar Hemani assisted by learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Standing Counsel Mr. Varun Patel with learned Standing Counsel Mr. Dev Patel for the department. 5. According to learned Senior Advocate Mr. Hemani, it is not unknown to this Court that pending the petition, objections can be directed to be disposed of as it is a group of the matters where there is hardly any possibility of the respondent taking any other stand while disposing of objections. This was resisted by the other side. 6. We noticed that in today’s date, this Court has disposed of two of the matters being Special Civil Application Nos. 4900/2022 and 4896/2022 wherein the assessment made is nil Page 3 of 4

C/SCA/4914/2022 ORDER DATED: 15/11/2022 and they were the part of the very group, therefore, nothing can be presumed in advance and the stage of disposing of the objections will need to be made available to the respondent authority. 7. Petition being prematured, this Court chooses not to entertain it at this stage. Let the disposal on the strength of the objections raised by the petitioner be made by the authority concerned within two weeks from the date of receipt of copy of this order, on availing opportunity in accordance with law. 8. If any adverse order is passed, no effect be given to the same by the Revenue for two weeks. The petitioner will be at liberty to take legal course within this period of two weeks, if it so chooses. 9. This Court has not expressed any view on the merits of the matter, it shall be decided on its own strength. Disposed of. (SONIA GOKANI, J) (MAUNA M. BHATT,J) Bhoomi Page 4 of 4

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