NANDBHANWAR SINGH RATHORE vs. ASSISTANT COMMISSIONER OF INCOME TAX

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CW/3817/2024HC RajasthanRJHC02020455202419 March 2024Author: PANKAJ MITHAL,SHUBHA MEHTA4 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the Assessing Officer is within their rights to issue a notice under Section 148 if there is information that income has escaped assessment. The petitioner had filed a reply to the Section 148 notice and participated in the proceedings. The Court found that this was not the stage to entertain a writ petition, as the matter was still before the assessing authorities. Any assessment made would be subject to appeal. Therefore, the Court found no grounds to entertain the writ petition and dismissed it. The principle derived is that writ jurisdiction should not be exercised to interfere with ongoing assessment proceedings when the assessee has participated and remedies of appeal are available.

What were the facts?

The petitioner, Nandbhanwar Singh Rathore, filed a writ petition challenging a notice dated 31.03.2023 issued under Section 148 of the Income Tax Act, 1961, for Assessment Year 2019-20, and all consequential notices/orders. The petitioner contended that the assessment authorities failed to provide an opportunity for cross-examination and did not furnish all necessary documents. Proceedings were allegedly initiated based solely on the petitioner's name appearing in some books. The respondent argued that the petitioner delayed challenging the notice and participated in the proceedings. The respondent also cited the Supreme Court's decision in Raymond Woollen Mills Ltd. regarding the reopening of cases. The petitioner had filed a reply to the Section 148 notice, but allegedly did not file a reply to a subsequent notice under Section 143(2).

What were the issues?

1. Whether the writ petition is maintainable at this stage, considering the petitioner participated in the assessment proceedings after receiving the notice under Section 148 of the Income Tax Act, 1961, and a subsequent notice under Section 143(2) was also issued. Assessee's Contentions: - The assessment authorities violated principles of natural justice by not providing an opportunity for cross-examination and not furnishing all relevant documents. - Proceedings were initiated based on insufficient grounds, specifically the petitioner's name appearing in some books. - Relied on *Sarwan Kumar Poddar Vs. Union of India* for the proposition that gross violation of natural justice renders proceedings unsustainable. Revenue's Contentions: - The petitioner delayed challenging the Section 148 notice and participated in the assessment proceedings. - Relied on *Raymond Woollen Mills Ltd. Vs. Income Tax Officer and Ors.* for the principle that the court should not strike down reopening if there is prima facie material, leaving the sufficiency of material for the assessing authority. - The petitioner did not file a reply to the notice under Section 143(2) of the Act.

Which sections of the Income-tax Act were involved?

Section 148,Section 143(2)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
[2024:RJ-JP:13704-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 3817/2024 Nandbhanwar Singh Rathore, Aged About 57 Years, R/o- C- 196, Arjun Marg, Singh Bhoomi, Khatipura, Jaipur- 302012, Rajasthan ----Petitioner Versus Assistant Commissioner Of Income Tax, Circle-1, Ncr Building, Statue Circle, Jaipur ----Respondent For Petitioner(s) : Mr. Aditya Vijay For Respondent(s) : Mr. Siddharth Bapna Mr. Sarvesh Jain HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MRS. JUSTICE SHUBHA MEHTA

Order 19/03/2024

1.

Learned counsel for the petitioner has preferred this writ petition inter-alia challenging notice dated 31.03.2023 issued under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for the Assessment Year 2019-20 and all the consequential notices/orders passed in pursuance thereto against the petitioner.

2.

It is contended by learned counsel for the petitioner that after issuance of the notice, petitioner had filed his reply. The assessment authorities have not provided opportunity of cross- examination and have also not provided entire documents to the petitioner.

3.

It is also contended that on the basis of name appearing on some books, proceedings have been initiated against the

[2024:RJ-JP:13704-DB] (2 of 4) [CW-3817/2024] petitioner. Learned counsel for the petitioner has placed reliance on Sarwan Kumar Poddar Vs. Union of India: (2022) 142 taxmann.com34 (Calcutta), wherein the High Court of Calcutta observed as under:- “8. In the light of the facts which we have set out in the preceding paragraphs, we have no hesitation to hold that there has been gross violation of principles of natural justice in the decision making process rendering the entire proceedings to be not sustainable. Therefore, we are inclined to interfere with the order passed by the assessing officer.

9.

For all the above reasons, the appeal is allowed and the order passed in the writ petition is set aside. Consequently, the order disposing of the objection filed by the assessee dated 7th March, 2022 and the assessment order dated 31st March, 2022 are quashed and the matter is remanded to the assessing officer to take a fresh decision in the matter after furnishing all the details and documents sought for by the assessee in their objections/representations.

10.

We make it clear that the entire information concerning the Wadhwa Group are not required to be furnished to the assessee but that part of the information relevant to the assessee has to be furnished including the findings rendered by the Settlement Commission qua the assessee. Since the assessee has sought for an opportunity of cross- examination of the concerned person, who is stated by the assessing officer to have given a statement against the assessee, the said person should be made available for cross-examination by the assessee and/or their authorised representative. The assessee is directed to co-operate in the de novo proceedings and such proceedings shall be commenced and concluded expeditiously.”

4.

Mr. Siddharth Bapna, learned counsel for the respondent has put his appearance on advance copy. It is contended that the notice was issued wayback on 31.03.2023, the petitioner did not choose to challenge the notice and participated in the proceedings and the petition was rejected on the account of delay in approaching this Court.

[2024:RJ-JP:13704-DB] (3 of 4) [CW-3817/2024]

5.

It is also contended that the Apex Court in Raymond Woollen Mills Ltd. Vs. Income Tax Officer and Ors.: (2008) 14 SCC 218 observed the following:

“3. In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be no order as to costs.”

6.

It is contended by learned counsel for the respondent that notice under Section 148 of the Act was issued and the assessing officer was competent to issue the same. The petitioner filed reply to the said notice and has actively participated in the proceedings. It is also contended that thereafter, notice under Section 143(2) of the Act was also given to the petitioner, to which he has not filed reply.

7.

We have considered the contentions.

8.

Assessing Officer is well within his right to issue notice under Section 148 of the Act if he has any information of the income chargeable to tax, but has escaped assessment. The Assessing Authority has accordingly issued notice to the petitioner, to which he has filed reply. This is not a stage where the writ petition can be entertained as the matter is still before the assessing authorities and any assessment made therefrom is subject to filing of appeal before the Appellate Authority.

[2024:RJ-JP:13704-DB] (4 of 4) [CW-3817/2024]

9.

Considering the above, we do not find any ground to entertain the writ petition, and the same is accordingly dismissed. (SHUBHA MEHTA),J (PANKAJ BHANDARI),J LAKSHYA-DAKSH/31

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