JAI KISHORE PRASAD vs. UNION OF INDIA AND ORS

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WPO/1910/2022HC CalcuttaWBCHCO002596202218 April 2022Bench: HON'BLE JUSTICE MD. NIZAMUDDIN3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the impugned notice under Section 148 of the Income Tax Act, 1961, and all subsequent proceedings are quashed. The Court found that the Assessing Officer had admittedly not followed the mandatory procedure of issuing a notice under Section 148A of the Act before issuing the notice under Section 148, which is required for notices issued after March 31, 2021. This procedural lapse, as highlighted by the petitioner and supported by the cited High Court judgments, rendered the notice invalid. The Court clarified that the quashing of the notice and proceedings would not prevent the Assessing Officer from issuing a fresh notice in accordance with the law in the future. The writ petition was disposed of with these observations, subject to the petitioner paying a cost of Rs. 5000/- to the High Court Legal Services Committee within ten days due to the delay in filing the petition without explanation.

What were the facts?

The petitioner, Jai Kishore Prasad, challenged a notice issued under Section 148 of the Income Tax Act, 1961. The petitioner argued that the notice was issued after March 31, 2021, and therefore, the newly amended provisions relating to Section 147 of the Act should apply. Specifically, the petitioner contended that the Assessing Officer had a mandatory obligation to issue a notice under Section 148A of the Act before issuing the Section 148 notice. The petitioner submitted a supplementary affidavit to show that a final assessment order had not yet been passed. The petitioner also relied on previous High Court judgments in Bagaria Properties and Investment Private Limited & Anr. vs. Union of India & Ors. and Monoj Jain vs. Union of India.

What were the issues?

1. Whether the notice issued under Section 148 of the Income Tax Act, 1961, is invalid for non-compliance with the mandatory requirement of issuing a notice under Section 148A of the Act, given that the notice was issued after March 31, 2021. Assessee's Contentions: The petitioner argued that the notice under Section 148 was issued in violation of Section 148A of the Act, as the Assessing Officer failed to issue a notice under Section 148A before issuing the Section 148 notice. This violation, according to the petitioner, renders the impugned notice and subsequent proceedings invalid. The petitioner relied on the High Court's decisions in Bagaria Properties and Investment Private Limited & Anr. vs. Union of India & Ors. and Monoj Jain vs. Union of India, which dealt with similar procedural violations concerning notices issued under the amended provisions. Revenue's Contentions: The judgment does not record any specific contentions made by the respondents (Union of India and Ors.).

Which sections of the Income-tax Act were involved?

Section 148,Section 147,Section 148A

AI-generated summary — verify with the full judgment below

OD – 37

ORDER SHEET WPO/1910/2022 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE

JAI KISHORE PRASAD VS UNION OF INDIA AND ORS

BEFORE: The Hon'ble JUSTICE MD. NIZAMUDDIN Date : 18th April, 2022. APPEARANCE: Ms. Swapna Das, Adv. Mr. Siddharth Das, Adv. …for the petitioner

Ms. Smita Das De, Adv. ..for the respondents

The Court : In this matter, petitioner has filed supplementary affidavit with supporting document to show that final assessment order has not been passed in this matter, which may be kept with the records. Heard Learned Counsels appearing for the parties. In this matter, petitioner has challenged the impugned notice under Section 148 of the Income Tax Act, 1961 which was issued after 31st March, 2021 with supporting documents on the ground that this case clearly falls under the newly amended act relating to proceedings under Section 147 of the Act and under which there is a mandatory obligation on the part of the assessing officer to issue notice under Section 148A of the Act before issuing any notice under Section 148 of the Act and which has admittedly not been done by the assessing officer and the impugned notice under Section 148 of the Act has been issued in violation of Section 148A of the Act.

Furthermore this case is directly covered by the orders of this Court in the case of Bagaria Properties and Investment Private Limited & Anr. vs. Union of India & Ors. reported in (2022) 134 taxman.com 196 (Calcutta) and also in the case of Monoj Jain vs. Union of India reported in (2022) 134 taxman.com 173 (Calcutta). Considering these facts I hold the impugned notice under Section 148 of the Act and all subsequent proceedings are quashed. However, quashing of the impugned notice and subsequent proceedings will not debar the assessing officer concerned to issue any fresh notice in future in accordance with law. With the above observations, this Writ Petition being WPO No.1910/2022 is disposed of. This writ petition is being entertained subject to payment of cost of Rs. 5000/- to the High Court Legal Services Committee since the impugned notice under Section 148 of the Income Tax Act, 1961, has been issued on 30th June, 2021 as appears from record and this writ petition has been filed in March, 2022, that is, almost after eight months from receipt of the impugned notice, without any explanation for such delay in filing this writ petition. Such cost has to be paid by the petitioner to the High Court Legal Services Committee within ten days from date and such cost will be utilised for the welfare of street children. Receipt of payment is to be produced by the petitioner before this Court.

List this matter as “To be Mentioned” on 29th April, 2022 for compliance. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

(MD. NIZAMUDDIN, J.)

Sbghosh

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