CHANDRAHAS JINDEL S/O SHRI SURAJ KARAN JINDEL vs. PRINCIPAL COMMISSIONER OF INCOME TAX-2,

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writs No. 25020/2018 Chandrahas Jindel S/o Shri Suraj Karan Jindel, Aged About 62 Years, R/o G-14, Krishna Marg, C-Scheme, Jaipur. ----Petitioner Versus 1. Principal Commissioner Of Income Tax-2, New Revenue Building, Statue Circle, Janpath, Jaipur-302005 2. Income Tax Officer, Ward-6(2), Room No. 320, Iiird Floor, New C.r. Building, Statue Circle, Jaipur-302005 3. Income Tax Officer, Ward- 2(3), New C.r. Building, Statue Circle, Jaipur-302005 ----Respondents For Petitioner(s) : Mr. Archit Bohra Adv. HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order 13/11/2018 The instant writ petition has been filed by the petitioner for seeking a direction to quash and set aside the notice issued under Section 148 of the Income Tax Act, 1961 dt. 27th March, 2018 and order dt. 18th October, 2018 (Annex. 9) disposing of the objections raised by the assessee with regard to issuance of notice under Section 148 of the Income Tax Act, 1961. Petitioner is also feeling aggrieved by order dt. 30th October, 2018 (Annex. 11) disposing of the objections of the petitioner in response to the notice issued under Section 148 of the Income Tax Act, 1961, after supplying the reasons for reopening the assessment.

(2 of 4) [CW-25020/2018] Learned counsel for the petitioner submitted that the respondent has acted in total disregard to the requirement of Section 124 with regard to the jurisdiction of the Assessing Officer. Counsel submitted that the petitioner was an assessee in Ward No. 2 (3), Jaipur whereas impugned action is taken by the Income Tax Officer of Ward No. 6 (2), Jaipur. Counsel further submitted that the very basis of reopening the assessment is illegal as petitioner had already filed the return for the assessment year 2011-12 and the Department has taken an erroneous view that petitioner has not at all filed the return. Counsel further submitted that the alleged transaction in respect to the purchase of property by the petitioner avoiding the tax was well explained while filing the returns and yet opinion has been formed that petitioner is liable to the reassessment proceedings. Counsel submitted that the Income Tax Authorities must act in bona-fide manner while reopening the assessment. Counsel submitted that initially the reasons were not supplied for reopening the assessment and after much delay, the reasons were supplied and the authority has rejected the objections in a mechanical manner. Counsel for the petitioner submitted that the Apex Court in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer and Ors. reported in (2003) 1 SCC 72, has laid down the law that while issuing the notice under Section 148 of the Income Tax Act, the noticee is required to have the reasons for issuing the notice and such reasons should be furnished within a reasonable time. Counsel for the petitioner has relied up on para 5 of the judgment passed in the case of GKN Driveshafts (India) Ltd.

(3 of 4) [CW-25020/2018] Vs. Income Tax Officer and Ors. (supra), which reads as under:- “We see no justifiable reason to interfere with the order under Challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the notice is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment year.” I have heard the submissions made by learned counsel for the petitioner and perused the material available on record. This Court, finds that the requirement of furnishing reasons has been complied with in the instant case and further the objections, so filed by the petitioner-assessee have been dealt with by the Assessing Officer and a speaking order has been passed. The submission of learned counsel for the petitioner that reply to notice has not been dealt with by the Assessing Officer and the impugned order cannot be termed as a speaking order, this Court finds that in the order which has been passed by the Assessing Officer, while considering the objections of the petitioner, proper reasons have been assigned. The issue of jurisdiction raised by counsel for the petitioner has also been dealt with and further the ‘reason to believe’ has been found by the Assessing Officer in respect of transaction/sale of the property of the petitioner where tax is not said to be paid. This Court under Article 226 of the Constitution of India cannot interfere at the stage of deciding the objections by the

(4 of 4) [CW-25020/2018] Assessing Officer after the compliance of giving notice under Section 148 and taking note of the objections of the assessee. Counsel submitted that there is a violation of Section 124 (3) of the Income Tax Act as the Income Tax Officer of ward No. 6(2) did not even have the territorial jurisdiction to issue the impugned notice. This Court on perusal of Section 124 (3) of the Income Tax Act, 1961 finds that the assessee cannot call in question, the notice which is served in sub Section (1) of Section 142 or sub Section (2) of Section 143. The objection of counsel for the petitioner is not sustainable, in view of the language in the Section itself. This Court in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer and Ors. (supra) has already laid down the parameters, where interference can be made by the High Court. This Court, does not find any error in the order passed by the Authorities. The present writ petition lacks merit and the same is dismissed, accordingly. (ASHOK KUMAR GAUR),J Monika/49