By not considering the reply of the Assessee mandate of Section 148A(c) (of Income Tax Act, 1961) has been violated as it casts a duty on the Assessing Officer, by using the expression 'shall', to consider the reply of the Assessee/assessee in response to notice under Section 148A(b) (of Income Tax Act, 1961) before making an order under Section 148A(d) (of Income Tax Act, 1961).

By not considering the reply of the Assessee mandate of Section 148A(c) (of Income Tax Act, 1961) has been violated as it casts a duty on the Assessing Officer, by using the expression 'shall', to consider the reply of the Assessee/assessee in response to notice under Section 148A(b) (of Income Tax Act, 1961) before making an order under Section 148A(d) (of Income Tax Act, 1961).

Income Tax

Assessee has the right to get adequate time in accordance with the Act to submit its reply. It is pertinent to mention that Section 148A(b) (of Income Tax Act, 1961) permits the Assessing Officer to suo moto provide up to thirty days' period to an assessee to respond to the show cause notice issued under Section 148A(b) (of Income Tax Act, 1961), which period may in fact be further extended upon an application made by the Assessee in this behalf, and such period given to the Assessee-assessee is excluded in computing the period of limitation for issuance of notice under Section 148A(d) (of Income Tax Act, 1961) in terms of the third proviso to Section 149 (of Income Tax Act, 1961). (para 4) In the present case, though the Assessee had filed an application for adjournment immediately after receipt of notice Revenuehad neither rejected the request for adjournment nor directed the Assessee to file a reply within the original stipulated time. Assessee had filed its response, by way of an email addressed. (para 5) Impugned order under Section 148A(d) (of Income Tax Act, 1961) had been passed after receipt of the said email, Assessing Officer should have considered the same as the reply was available on record. By not considering the reply of the Assessee mandate of Section 148A(c) (of Income Tax Act, 1961) has been violated as it casts a duty on the Assessing Officer, by using the expression 'shall', to consider the reply of the Assessee/assessee in response to notice under Section 148A(b) (of Income Tax Act, 1961) before making an order under Section 148A(d) (of Income Tax Act, 1961). (para 7) Impugned order issued under Section 148A(d) (of Income Tax Act, 1961) and the notice issued under Section 148 (of Income Tax Act, 1961) are set aside. Assessee’s petition allowed. (para 8)

1. Present writ petition has been filed challenging the Order dated 30th March, 2022 passed under Section 148A(d) (of Income Tax Act, 1961) (hereinafter referred to as ‘the Act’) by Respondent and notice dated 31st March, 2022 issued under Section 148 (of Income Tax Act, 1961) for the assessment year 2018-19.


2. Learned Counsel for the Petitioner states that a Show Cause Notice under Section 148A(b) (of Income Tax Act, 1961) was issued to the Petitioner on 17th March, 2022 and the Petitioner was directed to file its reply by 24th March, 2022. He states that an application for adjournment was filed by the petitioner on 18th March, 2022 requesting the Respondent to grant time till 27th March, 2022 for filing the submission in response to the aforesaid notice. He states that submission was filed on 27th March, 2022 by way of email, as the online submission portal was closed by the Respondent on 24th March, 2022.


3. Issue notice. Mr.Ajit Sharma, learned counsel for the respondent, accepts notice. He states that the Assessing Officer was within his right to close the online portal, as the petitioner had been granted only seven days’ time to file a response to the notice issued under Section 148A(b) (of Income Tax Act, 1961) dated 27th March, 2022. He further states that just because an adjournment application had been filed, the petitioner could not have presumed that the adjournment would be allowed.


4. Having heard learned counsel for the parties, this Court is of the view that the petitioner/assessee has the right to get adequate time in accordance with the Act to submit its reply. It is pertinent to mention that Section 148A(b) (of Income Tax Act, 1961) permits the Assessing Officer to suo moto provide up to thirty days’ period to an assessee to respond to the show cause notice issued under Section 148A(b) (of Income Tax Act, 1961), which period may in fact be further extended upon an application made by the Assessee in this behalf, and such period given to the petitioner-assessee is excluded in computing the period of limitation for issuance of notice under Section 148A(d) (of Income Tax Act, 1961) in terms of the third proviso to Section 149 (of Income Tax Act, 1961).


5. In the present case, though the petitioner had filed an application for adjournment immediately after receipt of notice dated 17th March, 2022, the respondent had neither rejected the request for adjournment nor directed the petitioner to file a reply within the original stipulated time.


6. In the present case, the petitioner had filed its response/submission on 27th March, 2022 by way of an email addressed to the Assessing Officer as the notice under Section 148A(b) (of Income Tax Act, 1961) had been received from the said email address.


7. Further, as the impugned order under Section 148A(d) (of Income Tax Act, 1961) had been passed after receipt of the said email, this Court is of the view that Assessing Officer should have considered the same as the reply was available on record. By not considering the reply of the Petitioner dated 27th March, 2022, the mandate of Section 148A(c) (of Income Tax Act, 1961) has been violated as it casts a duty on the Assessing Officer, by using the expression ‘shall’, to consider the reply of the Petitioner/assessee in response to notice under Section 148A(b) (of Income Tax Act, 1961) before making an order under Section 148A(d) (of Income Tax Act, 1961).


8. Consequently, the impugned order dated 30th March, 2022 issued under Section 148A(d) (of Income Tax Act, 1961) and the notice dated 31st March, 2022 issued under Section 148 (of Income Tax Act, 1961) are set aside. The respondent is directed to take the submission filed on 27th March, 2022 on record and pass a reasoned order in accordance with law within eight weeks. This Court clarifies that it has not commented on the merits of the controversy. The rights and contentions of all the parties are left open.


9. With the aforesaid direction, the present writ petition along with pending applications stands disposed of.



MANMOHAN, J


MANMEET PRITAM SINGH ARORA, J


MAY 27, 2022

LEGAL REFERENCES
Section 7 Income Tax Act Section 148A(d) Section 148 Section 148A(b) Section 149 Section 148A(c)
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