PAWAN KUMAR AGARWAL HUF V. UNION OF INDIA AND ORS.

APOT/96/2023

AI Insights

This case involves an intra-court appeal by the appellant, Pawan Kumar Agarwal, HUF, against the Union of India, concerning an order passed by the Assessing Officer under Section 148A(d) of the Income Tax Act, 1961. The appellant challenged the order on various grounds, particularly focusing on the issue of limitation. The writ court had previously set aside an order/communication from the Assessing Officer and remanded the matter for fresh consideration. The appellate court found that the Assessing Officer had not appropriately addressed the limitation issue in the order under Section 148A(d), leading to the setting aside of this order and restoration of the proceedings to the stage of issuance under Section 148A(b).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 725711 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 26-04-2023
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SMITA DE; AMIT SHARMA
• Assessee Lawyers: PRATYUSH JHUNJHUNWALA; SAMIT RUDRA
• Keywords: Assessing Officer; Limitation; Reopening proceedings; Writ petition; Legal and factual issues
• Section: 142(1); 148A(b); 148A(d)

Judgement Text

"OD – 31 APOT/96/2023 IA No.GA/1/2023 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE PAWAN KUMAR AGARWAL, HUF -Versus- UNION OF INDIA AND ORS. BEFORE : THE HON’BLE ACTING CHIEF JUSTICE T.S. SIVAGNANAM And THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 26th April, 2023 Appearance : Mr. Pratyush Jhunjhunwala, Adv. Mr. Samit Rudra, Adv. ...for the appellant. Ms. Smita Das De, Adv. Mr. Amit Sharma, Adv. ...for the respondent. The Court : We have heard Mr. Pratyush Jhunjhunwala learned counsel assisted by Mr. Samit Rudra, learned advocate for the appellant/assessee and Ms. Smita Das De, leaned standing counsel assisted Mr. Amit Sharma, learned advocate for the respondent/revenue. This intra-court appeal filed by the writ petitioner is directed against the order dated 31st March, 2023 passed in WPO/745/2023. In the said writ petition, the appellant had challenged the correctness of the order passed by the Assessing Officer under Section 148A(d) of the Income Tax Act, 1961 (the 2 ‘Act’ for brevity) raising various objections, and, in particular that the proceedings are barred by limitation. After the order was passed under Section 148A(d) of the act, the Assessing Officer has issued a notice under Section 142(1) dated 11th March, 2023. In response to the said notice, the appellant had submitted their objections on 15th March, 2023 and the objections were dealt with by the Assessing Officer and an order/communication was sent to the appellant dated 18th March, 2023. The learned writ Court, on considering the said communication/order dated 18th March, 2023 was of the view that the order does not deal with the factual and legal issues which have been pointed out by the assessee in their reply dated 15th March, 2023 and thought fit to set aside the order/communication dated 18th March, 2023 and remanded the matter back to the Assessing Officer for fresh consideration. In our view, the Assessing Officer, after having passed an order under Section 148A(d) of the Act cannot decide the question of limitation for initiation of reopening proceedings at a stage where notice under Section 148 has been issued. Therefore, in order to give an effect to the order passed by the learned writ Court, the order passed under Section 148A(d) of the Act dated 28th July, 2022 has to be necessarily set aside since the limitation issue goes to the root of the matter and the learned single Judge having been convinced that the Assessing Officer did not deal with the 3 issue in an appropriate manner while passing the order dated 18th March, 2023 to undertake the exercise directed to be done by the learned writ Court, the order passed under Section 148A(d) of the Act has to be necessarily set aside and the matter stands restored to the stage of issuance of Section 148A(b) of the Act. Accordingly, the appeal (APOT/96/2023) is allowed and the order passed under Section 148A(d) of the Act is set aside and the proceedings are restored to the stage of issuance under Section 148A(b) of he Act and the Assessing Officer is directed to consider the objections raised by the assessee both factually and legally and take note of the decisions which have been relied on by the assessee and after affording an opportunity to the assessee, redo the entire exercise in accordance with law. The above direction be complied with by the Assessing Officer within a period of twelve weeks from the date of receipt of server copy of this order. Consequently, the connected application (IA No.GA/1/2023) also stands disposed of. (T.S. SIVAGNANAM) ACTING CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) As "