KIRTI INDUSTRIAL COMPANY LIMITED vs. UNION OF INDIA AND ORS.

PDF · subscribers
WPA/1487/2022HC CalcuttaWBCHCA003244202202 February 2022Bench: HON'BLE JUSTICE MD. NIZAMUDDIN5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the appellant did not have adequate opportunity to put forth its submissions and that the reply to the show cause notice, though received by the respondents' office, had not been considered. On this ground alone, the Court was inclined to remand the matter to the assessing officer for fresh consideration. The Court explicitly stated that it had not gone into the merits of the matter and all issues were left to be agitated before the assessing officer. The assessment order was set aside, and the matter was remanded to the assessing officer. The assessing officer was directed to take into consideration the reply filed by the assessee to the show cause notice and all other documents, provide an opportunity of personal hearing, and pass a fresh order on merits. The appeal and the writ petition were disposed of, and the interim order application was allowed.

What were the facts?

The appellant, Ishan Information Services Private Limited, filed an intra-court appeal against an order dated May 18, 2022, by a single bench of the High Court of Judicature at Calcutta. The single bench had declined to grant an interim order in W.P.A. No. 7916 of 2022 and directed the respondents (Union of India & Ors.) to file their affidavit in opposition. The appeal challenges this refusal of interim relief. The core of the dispute revolves around a show cause notice issued under Section 148A of the Income Tax Act, 1961, dated March 22, 2022. The assessee claims to have filed a response on March 25, 2022, which was received by the department on the same day. However, the assessment order dated March 31, 2022, for assessment year 2018-19, stated that the assessee had not complied with the notices.

What were the issues?

1. Whether the appellant had adequate opportunity to put forth its submissions to the show cause notice issued by the respondent under Section 148A of the Income Tax Act, 1961, dated March 22, 2022? (Mixed question of law and fact) Assessee's Contentions: - The assessee submitted a response to the show cause notice on March 25, 2022, which was received by the department on the same day. - The assessment order incorrectly stated that the assessee never complied with the notices. - The relevant PAN (AAACI5619Q) had been cancelled by the department. - The assessee was not communicated with the notice issued under Section 148 of the Act. Revenue's Contentions: - The contention that the PAN has been cancelled is incorrect. - The Court noted that it did not propose to go into these aspects as they touched upon the merits of the matter.

Which sections of the Income-tax Act were involved?

Section 148A,Section 148

AI-generated summary — verify with the full judgment below

Item No.11. IN THE HIGH COURT OF JUDICATURE AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE HEARD ON: 21.09.2022 DELIVERED ON:21.09.2022 CORAM: THE HON’BLE MR. JUSTICE T. S. SIVAGNANAM AND THE HON’BLE MR. JUSTICE SUPRATIM BHATTACHARYA

M.A.T. No.1487 of 2022 With I.A. No.CAN 1 of 2022 With I.A. No.CAN 2 of 2022

Ishan Information Services Private Limited. Vs. Union of India & Ors. Appearance:- Mr. Abhratosh Majumder, Sr. Adv., Mr. Sutirtha Das

….. for the appellant. Mr. Vipul Kundalia, Mr. Amit Sharma, Mr. Anurag Roy

… for the respondents.

JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

Re: I.A. CAN 1 of 2022 1. This application has been filed to condone the delay of 84 days in filing the instant appeal. 2. We have heard Mr. Abhratosh Majumder, learned senior counsel appearing for the appellant/assessee and Mr. Vipul Kundalia, learned senior standing counsel duly assisted by Mr. Mr. Amit Sharma, learned Advocate for the respondents. 3. We are satisfied with the reasons assigned in the affidavit filed in support of the application. Accordingly, the delay in filing the instant appeal is condoned. 4. The application being I.A. CAN 1 of 2022 is allowed. Re: M.A.T. No.1487 of 2022 5. This intra Court appeal is directed against the order dated 18th May, 2022 in W.P.A. No. 7916 of 2022 by which the learned 2

single Bench declined to grant any interim order and directed the respondents/department to file their affidavit in opposition. The appellant being aggrieved by the same is before us by way of this appeal. 6. The short question, which falls for consideration is whether the appellant had an adequate opportunity to put forth its submissions to the show cause notice issued by the respondent under section 148A of the Income Tax Act, 1961 (for short “Act”) dated 22nd March, 2022. The appellants had filed its response in the first case, which is taken as the sample case on March 25, 2022 and as could be seen from the date seal of the department, the said respondent received the same on March 25, 2022. However, in the assessment order dated 31st March, 2022 for the assessment year 2018-19, the assessing officer states that the assessee never complied with the notices and show cause notice issued and therefore, he has no other alternative but to complete the assessment under section 148 of the Act as per the materials available on record. 7. According to the appellant, no such assessment could have been made because the relevant PAN namely AAACI5619Q has been cancelled by the department themselves. Apart from the same, 3

other contentions were also raised in the reply dated March 25, 2022. 8. Mr. Majumder, learned senior counsel submitted that the assessee was not communicated with the notice issued under section 148 of the Act. If that be so, we grant liberty to the appellant to make a request before the assessing officer for serving a copy of the same together with the reasons recorded. 9. The learned senior standing counsel appearing for the respondents submitted that the contention of the assessee that the PAN has been cancelled is incorrect. In any event, we do not propose to go into those aspects as they all touch upon the merits of the matter. As we are satisfied that the appellant did not have adequate opportunity to put forth its submission and the reply to the show cause notice dated March 22, 2022 though received by the office of the respondents has not been considered, therefore on this short ground alone, we are inclined to remand the matter to the assessing officer for fresh consideration. 10. In the result, the appeal as well as the writ petition stand disposed of and the assessment order is set aside and the matter is remanded to the assessing officer for fresh consideration. The assessing officer shall take into 4

consideration the reply filed by the assessee to the show cause notice and all other documents as it may rely upon. The assessing officer shall provide an opportunity of personal hearing to the appellant or its authorised representative through video conferencing or physical mode and pass a fresh order on merits and in accordance with law. 11. We make it clear that we have not gone into the merits of the matter and all issues are left to be agitated before the assessing officer. 12. Accordingly, the appeal and I.A. No. CAN 2 of 2022 as well as the writ petition stand disposed of/allowed. 13. No order as to costs. 14. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.

(T. S. SIVAGNANAM, J) I agree,

(SUPRATIM BHATTACHARYA, J.) NAREN/PALLAB(AR.C) 5

More judgments on Section 148A

All 3,543 judgments and leading authorities on Section 148A →

Recent GST High Court judgments

Search GST case law →