AKSHAY GAS AGENCY THROUGH ITS PROPRIETOR vs. PRINCIPAL COMMISSIONER INCOME TAX

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WP/7424/2023HC BombayHCBM03024483202310 July 2023Bench: HON'BLE SHRI JUSTICE RAVINDRA V. GHUGE,HON'BLE SHRI JUSTICE Y. G. KHOBRAGADE2 pages
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What did the High Court hold?

The High Court held that the impugned order passed under Section 148-A(d) of the Income Tax Act, 1961, was liable to be quashed and set aside. The Court noted that the petitioner had submitted a belated reply on 23.03.2023, and the impugned order was passed on 28.03.2023, when this reply was already before the concerned authority. Relying on its previous judgment in Pradeep S/o Tukaram Kokadwar Vs. The Principal Chief Commissioner Income Tax-1, Nashik and Another, the Court stated that the law laid down in that case would also apply. The Court quashed and set aside the impugned order dated 28.03.2023 and permitted the respondent no.2 to consider the petitioner's reply dated 23.03.2023 and pass an appropriate reasoned order within 30 days. The parties would then be at liberty to take recourse to remedies permissible in law.

What were the facts?

The petitioner, Akshay Gas Agency, through its proprietor, filed a writ petition challenging an order passed under Section 148-A(d) of the Income Tax Act. The notice under Section 148-A(b) was issued on 16.02.2023, granting 11 days for a reply. The petitioner submitted a belated reply on 23.03.2023. Subsequently, the impugned order under Section 148-A(d) was passed on 28.03.2023, despite the petitioner's reply being on record. The department opposed the petition, seeking to proceed with the Section 148 proceedings.

What were the issues?

1. Whether the impugned order passed under Section 148-A(d) of the Income Tax Act, 1961, is liable to be quashed and set aside when the assessee's belated reply to the show cause notice under Section 148-A(b) was already on record before the passing of the said order? Assessee's Contention: The assessee argued that the impugned order was passed without considering their belated reply, which was submitted before the order was finalized. Revenue's Contention: The department opposed the petition, contending that the proceedings under Section 148 of the Income Tax Act should be permitted to be proceeded with.

Which sections of the Income-tax Act were involved?

Section 148-A,Section 148

AI-generated summary — verify with the full judgment below

(1) 28-wp-7424-2023 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7424 OF 2023 AKSHAY GAS AGENCY THROUGH ITS PROPRIETOR VERSUS PRINCIPAL COMMISSIONER INCOME TAX AND ANR … Mr. Raviraj R. Chandak, Advocate for the Petitioner. Mr. Alok Sharma, Advocate for Respondent Nos.1 and 2.

… CORAM : RAVINDRA V. GHUGE AND Y. G. KHOBRAGADE, JJ. DATE : 10th JULY, 2023. PER COURT:- 1. We have considered the submissions of the learned Advocate for the respective sides. 2. The department has opposed this petition contending that the proceedings under Section 148 of the Income Tax Act, may be permitted to be proceeded with. 3. The issue raised in this petition is with regards the submission of a reply to the show cause notice under Section 148- A (b) of the Income Tax Act, belatedly and such reply having been tendered before the impugned order under Section 148-A (d) is passed. By judgment dated 28.06.2023, this Court has dealt with the said issue in Writ Petition No.10244/2022 filed by Pradeep S/o Tukaram Kokadwar Vs. The Principal Chief Commissioner Income Tax-1, Nashik and Another. The only difference is that in the earlier petition, the notice was issued

(2) 28-wp-7424-2023 prior to the amendment of 2021. Nevertheless, the law as is laid down in Pradeep S/o Tukaram Kokadwar (supra), will also apply to this case. 4. Considering the dates and sequence of events set out in the petition, it is obvious that the notice under Section 148-A (b) was dated 16.02.2023. 11 days time was granted to the petitioner to submit a reply. The petitioner tendered a reply on 23.03.2023, belatedly. However, the impugned order was passed on 28.03.2023, when the reply of the petitioner was already before the concerned authority. 5. In view of the above and the view taken by this Court in Pradeep S/o Tukaram Kokadwar (supra), this petition is partly allowed. The impugned order dated 28.03.2023 is quashed and set aside. We permit respondent no.2 to consider the reply of the petitioner dated 23.03.2023 and pass an appropriate reasoned order in accordance with law, within 30 days from today. 6. Needless to state, thereafter the parties would take recourse to the remedy as is permissible in law. (Y. G. KHOBRAGADE) (RAVINDRA V. GHUGE) JUDGE JUDGE Devendra/July-2023

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