RAJESH GUPTA vs. ITO WARD 35(1) DELHI

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W.P.(C)/7857/2023HC DelhiDLHC01022236202301 September 2023Bench: HON'BLE MR. JUSTICE RAJIV SHAKDHER,HON'BLE MR. JUSTICE GIRISH KATHPALIA2 pages
AI SummaryRemanded

What did the High Court hold?

The High Court allowed the prayer made in the application. Based on the affidavit filed by the respondent/revenue, it was conceded that the notice under Section 148 of the Income Tax Act, 1961, was wrongly issued to the petitioner. The revenue further stated that the notice should have been issued to the petitioner's namesake. Consequently, the writ petition was disposed of in terms of this concession. The interim order dated May 31, 2023, which had stayed the operation of the assessment order and penalty notice, was vacated. The operative direction was to dispose of the writ petition based on the revenue's admission of error in issuing the notice.

What were the facts?

The petitioner, Rajesh Gupta, filed a writ petition challenging an assessment order dated May 8, 2023, passed under Section 147 read with Sections 144 and 144B of the Income Tax Act, 1961, for Assessment Year 2017-18. The petitioner contended that the assessment order was not preceded by a valid notice under Section 148 or Section 148A(b) of the Act. Specifically, the petitioner argued that the PAN mentioned in the Section 148 notice dated July 28, 2022, which was on record, did not belong to him. The High Court, on May 31, 2023, stayed the operation of the assessment order and penalty notice and listed the matter for further hearing. The revenue was directed to file a counter-affidavit.

What were the issues?

1. Whether the assessment order dated May 8, 2023, passed under Section 147 read with Sections 144 and 144B of the Income Tax Act, 1961, is invalid for not being preceded by a proper notice under Section 148 or Section 148A(b) of the Act, particularly concerning the PAN mentioned in the notice. The assessee argued that the assessment order is bad in law as it was passed without issuing a proper notice under Section 148 or Section 148A(b). The specific contention was that the PAN embedded in the Section 148 notice dated July 28, 2022, did not pertain to the petitioner. The revenue, through its senior standing counsel, conceded that the notice under Section 148 of the Income Tax Act, 1961, was wrongly issued to the petitioner and ought to have been issued to the petitioner's namesake.

Which sections of the Income-tax Act were involved?

Section 147,Section 144,Section 144B,Section 148,Section 148A(b)

AI-generated summary — verify with the full judgment below

W.P.(C) 7857/2023

Page 1 of 2

$~17 * IN THE HIGH COURT OF DELHI AT NEW DELHI %

Date of Decision: 01.09.2023

+ W.P.(C) 7857/2023 & CM APPL. 30290/2023

RAJESH GUPTA

..... Petitioner

Through: Mr Nagesh Behl, Adv.

versus

ITO WARD 35(1) DELHI

..... Respondent Through: Mr Vipul Agarwal, Sr. Standing Counsel with Mr Dushyant, Adv.

HON'BLE MR. JUSTICE RAJIV SHAKDHER

HON'BLE MR. JUSTICE GIRISH KATHPALIA [Physical Hearing/Hybrid Hearing (as per request)] RAJIV SHAKDHER, J. (ORAL): 1. We had heard learned counsel for the parties at some length on 31.05.2023, whereupon the following was recorded: “2.This petition concerns Assessment Year (AY) 2017-18. 3. Mr Nagesh Behl, who appears on behalf of the petitioner, says that the impugned assessment order dated 08.05.2023, which has been passed under Section 147 read with Section 144 and Section 144B of the Income Tax Act, 1961 [in short, “Act”] is not preceded by issuance of either a Section 148 notice or a Section 148A(b) notice. 4. Mr Behl says that consequently, the Assessing Officer (AO) did not pass an order under Section 148(d) of the Act. 5. We may note that notice dated 28.07.2022 issued under Section 148 of the Act is on record. [See Annexure P-2, appended on page 39 of the case file]. 6. Mr Behl says that the PAN embedded in the notice does not relate to the petitioner. The PAN on the notice reads as follows: “AGHPG4279L”. 7. Mr Vipul Agarwal, learned senior standing counsel, who appears on behalf of the respondents/revenue, says that he will return with instructions in the matter. Digitally Signed By:VAISHALI CHAUHAN Signing Date:10.10.2023 11:34:42 Signature Not Verified

W.P.(C) 7857/2023

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8.

Accordingly, issue notice. 8.1 Mr Agarwal accepts notice on behalf of the respondents/revenue. 9. In case instructions are received to resist the petition, a counter- affidavit will be filed before the next date of hearing. 10. List the matter on 01.09.2023. 11. In the meanwhile, operation of the impugned assessment order and demand notice shall remain stayed, till further directions of this court. 11.1 Furthermore, the operation of the penalty notice dated 08.05.2023 shall also remain stayed.

12.

Parties will act based on the digitally signed copy of the order.”

2.

Mr Vipul Agarwal, learned senior standing counsel, who appears on behalf of respondent/revenue, submits that the respondent/revenue has filed the affidavit in the matter. 3. Based on the affidavit, Mr Agarwal contends that in this case, notice under Section 148 of the Income Tax Act, 1961 [in short, “Act”] was wrongly issued to the petitioner. 3.1 The notice under Section 148 of the Act had to be issued to the petitioner’s namesake. 4. Accordingly, the prayer made in the application is allowed. 5. The writ petition is disposed of, in the aforesaid terms. 6. Accordingly, interim order dated 31.05.2023 shall stand vacated.

RAJIV SHAKDHER

JUDGE

GIRISH KATHPALIA JUDGE

SEPTEMBER 1, 2023/RY

Click here to check corrigendum, if any Digitally Signed By:VAISHALI CHAUHAN Signing Date:10.10.2023 11:34:42 Signature Not Verified

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