Lailak Gold V. National Faceless Assessment Centre (NaFAC) and Income Tax Officer, Ward II, Tirur

WP(C)/9825/2023

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The case involves M/s Lailak Gold, which did not file a return of income for the assessment year 2018-19. The Income Tax Department flagged the petitioner for unusual cash transactions during the financial year 2017-18. A show cause notice was issued under Section 148A(b) of the Income Tax Act, 1961, which the petitioner responded to but did not file a return. Consequently, the assessing officer passed an assessment order under Sections 147 and 144B of the Act, which included additions not mentioned in the initial show cause notice. The petitioner challenged this order through a writ petition under Article 226 of the Constitution, which was dismissed by the High Court of Kerala.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 799772 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-12-2023
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: MANU; CHRISTOPHER ABRAHAM
• Assessee Lawyers: LATHA ANAND; M N RADHAKRISHNA MENON; K R PRAMOTH KUMAR; S VISHNU
• Keywords: Assessment Order; Cash deposit; Cash withdrawal; Income Tax; Non-filing of return; Risk management strategy; Risk management strategy; Show cause notice; ITBA software; NMS cases
• Section: 147; 148; 143(2); 144B; 148A(b); 226

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 WP(C) NO. 9825 OF 2023 PETITIONER/S: M/S LAILAK GOLD, DOOR NO. EP VI/1033 LAILAK GOLD, MAIN ROAD, EDAKKARA, EDAKKARA PO, MALAPPURAM-679331, REPRESENTED BY ITS MANAGING PARTNER BY ADVS. LATHA ANAND M.N.RADHAKRISHNA MENON K.R.PRAMOTH KUMAR S.VISHNU (ARIKKATTIL) RESPONDENT/S: 1 NATIONAL FACELESS ASSESSMENT CENTRE (NaFAC), MAYUR BHAWAN, CONNAUGHT LANE, BARAKHAMBA ROAD, NEW DELHI, PIN- 110001, REPRESENTED BY THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (NaFAC). 2 INCOME TAX OFFICER, WARD II, TIRUR, NO. 20/1240, TARIFF BAZAR, TOWN HALL ROAD, TIRUR, PIN - 676101 BY ADVS. SRI.MANU S. SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT OTHER PRESENT: SRI.CHRISTOPHER ABRAHAM -SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 9825 OF 2023 2 J U D G M E N T The present writ petition has been filed under Article 226 of the Constitution of India impugning show cause notice dated 8.12.2022, Ext.P9, and assessment order dated 22.2.2023, Ext.P11, in respect of the assessment year 2018-19 passed under Sections 147 read with 144B of the Income Tax Act, 1961 (“Act”, for short). 2. The petitioner did not file return of income for the assessment year 2018-19. In the case of the petitioner/assessee, a specific information was flagged as per the Risk Management Strategy formulated by the CBDT through ITBA software under the head “NMS cases”. It was noticed that the petitioner/assessee had made, cash deposit in the current account for Rs.197.25 lakhs and cash withdrawal of Rs.10.98 lakhs from the current account for the financial year 2017-18 relevant to the assessment year 2018-19. An opportunity of being heard as per the provisions of WP(C) NO. 9825 OF 2023 3 Section 148A(b) of the Act was provided to the petitioner/assessee with the prior approval of the competent authority dated 17.3.2022, and the petitioner was given show cause notice as to why the income/receipt as mentioned above should not be treated as income chargeable to tax, which escaped assessment within the meaning of the provision of Section 147 of the Act, for the assessment year 2018-19. The petitioner submitted its reply to the show cause notice. However, the petitioner did not file any return in response to the notice and, therefore, on the basis of the records available, the jurisdictional assessing officer passed the assessment order, Ext.P11. Learned counsel for the petitioner submits that some additions, which were not part of the show cause notice, have been made in the assessment order. 3. There is no bar under the provisions of the Act for making additions, when such amount/additions comes to the notice of the assessing officer during the course of the WP(C) NO. 9825 OF 2023 4 assessment proceedings, even if the same is not mentioned in the show cause notice. The petitioner, initially and also despite service of notice, did not file return for the assessment year 2018-19. The case was taken up under the provisions of Section 148/148A of the Act and after following due procedure, the assessment proceedings got concluded vide the impugned order in Ext.P11. 4. I find no substance in the submission of the learned counsel for the petitioner that some additions made in the assessment order did not find a place in the show cause notice and, therefore, the assessment order is bad in law. It is to be noted that against the impugned assessment order, there is statutory remedy of appeal available to the petitioner and, therefore, the petitioner ought to have approached the appellate authority, instead of filing the present writ petition. 5. In view of the above, the present writ petition is dismissed for bereft of merit and also not finding the submissions convincing. The WP(C) NO. 9825 OF 2023 5 petitioner may, however, approach the appellate authority against the impugned assessment order, Ext.P11, if so advised. The appellate authority may proceed with the said appeal, in accordance with law. Interim order, if any, passed in the present writ petition stands vacated. Pending interlocutory application, if any, in the writ petition stands dismissed. Sd/- DINESH KUMAR SINGH JUDGE jg WP(C) NO. 9825 OF 2023 6 APPENDIX OF WP(C) 9825/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED 29.03.2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P2 TRUE COPY OF THE RETURN OF INCOME DATED 27.08.2022 FOR THE ASSESSMENT YEAR 2018-19 Exhibit P3 TRUE COPY OF THE NOTICE DATED 02.09.2022 ISSUED UNDER SECTION 142(1) OF THE ACT TO THE PETITIONER. Exhibit P4 TRUE COPY OF THE UNDATED REPLY FILED BY THE PETITIONER TO THE EXHIBIT P-3 NOTICE Exhibit P5 TRUE COPY OF THE NOTICE DATED 17.08.2022 ISSUED UNDER SECTION 144B OF THE ACT TO THE PETITIONER Exhibit P6 TRUE COPY OF THE NOTICE DATED 14.10.2022 ISSUED UNDER SECTION 142(1) OF THE ACT TO THE PETITIONER Exhibit P7 TRUE COPY OF THE UNDATED REPLY WITHOUT ANNEXURES FILED BY THE PETITIONER TO THE EXHIBIT P-6 NOTICE Exhibit P8 TRUE COPY OF THE NOTICE DATED 08.12.2022 ISSUED UNDER SECTION 143(2) R/W SEC. 147 OF THE ACT TO THE PETITIONER Exhibit P9 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 08.12.2022 Exhibit P10 TRUE COPY OF THE UNDATED REPLY FILED BY THE PETITIONER TO THE EXHIBIT P-9 NOTICE WP(C) NO. 9825 OF 2023 7 Exhibit P11 TRUE COPY OF THE ASSESSMENT ORDER DATED 22.02.2023 "