PRAKASH KUMAR PASARI AND COMPANY PRIVATE LIMITED THROUGH ONE OF ITS DIRECTOR SRI RUPAK PASARI V. UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF FINANCE DEPARTMENT OF REVENUE

WPC/1858/2022

AI Insights

The case involves Prakash Kumar Pasari and Company Private Limited, which challenged the notice issued under Section 148 A (b) of the Income Tax Act, 1961, claiming it was not in accordance with Section 282 of the Act read with Rule 127 of the Income Tax Rules. The petitioner argued that they did not receive a proper opportunity to respond to the notice, leading to an unfair reassessment. The respondents included various authorities from the Union of India, specifically the Ministry of Finance and the Central Board of Direct Taxes. The court examined the procedures followed in issuing the notice and found them to be compliant with the statutory requirements, leading to the dismissal of the petition.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 722488 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 04-07-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961, Companies Act, 1956, Information Technology Act, 2000, Code of Civil Procedure, 1908
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAHUL LAMBA
• Assessee Lawyers: NITIN PASARI
• Keywords: Electronic communication; Income Tax; Notice; Reassessment; Service of notice
• Section: 148; 282; 148A; 127

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 1858 of 2022 Prakash Kumar Pasari and Company Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at Court Road, Chaibasa, West Singhbhum, 833201, Jharkhand through one of its Director Sri Rupak Pasari, S/o Late Prakash Kumar Pasari, aged about 45 years, resident of House No.35B, Dayas Haceinda, Lane No.3, Near Circuit House, ‘CH’ Area, Sakchi, Bistupur, P.O. & P.S. Bistupur Town, District- Jamshedpur, East Singhbhum, Jharkhand ..… Petitioner Versus 1. Union of India, through the Secretary, Ministry of Finance, Department of Revenue, having his office at the Central Secretariat, North Block, P.O. & P.S. Central Secretariat, New Delhi-110001. 2. Central Board of Direct Taxes, through its Chairman having his officer at the North Block, Secretariat Building, P.O. & P.S. Central Secretariat, New Delhi-110002. 3. Commissioner of Income Tax (Central), Patna at Ranchi, having its office at Mahavir Tower, Main Road Ranchi, P.O. G.P.O, P.S. Hindpiri, District-Ranchi (Jharkhand)-834001 4. Assistant Commissioner of Income Tax, (Central) Circle 1, Ranchi having its office at Mahavir Tower, Main Road Ranchi, P.O. G.P.O, P.S. Hindpiri, District-Ranchi (Jharkhand)-834001 ..... Respondents --------- CORAM: Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Deepak Roshan --------- For the Petitioner : Mr. Nitin Kr. Pasari, Advocate For the Respondents : Mr. Rahul Lamba, Advocate --------- 05/ 04.07.2022 Heard learned counsel for the parties. 2. According to the petitioner, the notice dated 22nd March, 2022 under Section 148 A (b) of the Income Tax Act, 1961, as amended w.e.f. 1st April, 2021, was not in accordance with Section 282 of the Income Tax Act, 1961 read with Rule 127 of the Income Tax Rules. The petitioner could not get a chance to respond to the notice and as a result the order in terms of Section 148 A (d) has been passed (Annexure-1). Reassessment notice under Section 148 has also been issued. Petitioner has approached this Court after issuance of the notice under Section 148 for reopening of assessment proceedings. For proper appreciation of the case of the petitioner Section 282 of the Income Tax Act, 1961 and Rule 127 are quoted hereunder: “[282. Service of notice generally. - (1) The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section referred to as \"communication\") may be made by delivering or transmitting a copy thereof, to the person therein named,- -2- (a) by post or by such courier services as may be approved by the Board; or (b) in such manner as provided under the Code of Civil Procedure, 1908(5 of 1908) for the purposes of service of summons; or (c) in the form of any electronic record as provided in Chapter TV of the Information Technology Act, 2000(21 of 2000); or (d) by any other means of transmission of documents as provided by rules made by the Board in this behalf. (2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub- section (1) may be delivered or transmitted to the person therein named. Explanation.-For the purposes of this section, the expressions \"electronic mail\" and \"electronic mail message\" shall have the meanings as assigned to them in Explanation to section 66-A of the Information Technology Act, 2000 (21 of 2000)]” “[Service of notice, summons, requisition, order and other communication. 127.(1) For the purposes of sub-section (1) of section 282, the addresses (including the address for electronic mail or electronic mail message) to which a notice or summons or requisition or order or any other communication under the Act (hereafter in this rule referred to as \"communication\") may be delivered or transmitted shall be as per sub-rule (2). (2) The addresses referred to in sub-rule (1) shall be— (a) for communications delivered or transmitted in the manner provided in clause (a) or clause (b) of sub-section (1) of section 282— (i) the address available in the PAN database of the addressee; or (ii) the address available in the income-tax return to which the communication relates; or (iii) the address available in the last income-tax return furnished by the addressee; or (iv) in the case of addressee being a company, address of registered office as available on the website of Ministry of Corporate Affairs: Provided that the communication shall not be delivered or transmitted to the address mentioned in item (i) to (iv) where the addressee furnishes in writing any other address for the purposes of communication to the income-tax authority or any person authorised by such authority issuing the communication: (b) for communications delivered or transmitted electronically— (i) e-mail address available in the income-tax return furnished by the addressee to which the communication relates; or (ii) the e-mail address available in the last income-tax return furnished by the addressee; or (iii) in the case of addressee being a company, e-mail address of the -3- company as available on the website of Ministry of Corporate Affairs; or (iv) any e-mail address made available by the addressee to the income-tax authority or any person authorised by such income-tax authority. (3) The Principal Director General of Income-tax (Systems) or the Director General of Income-tax (Systems) shall specify the procedure, formats and standards for ensuring secure transmission of electronic communication and shall also be responsible for formulating and implementing appropriate security, archival and retrieval policies in relation to such communication.]” 3. The notice under 148 A (b) relates to assessment year 2018- 19. The ITR of the concerned assessment year has not been enclosed to the writ petition. Respondent Department has enclosed the ITR 6 for assessment year 2020-21, which contains the personal information of the assessee with the Email address-1 sdy.articles @ gmail.com. The second Email address is missing. Annexure 8 to the rejoinder affidavit is the Company’s Master data available on the web portal of the Ministry of Corporate Affairs, where its Email Id is [e-mail]. PAN details of the petitioner is at Annexure 3, which contains two Email addresses- [e-mail] and Pasari.Rupak@ gmail.com. Section 148 A introduced by Finance Act, 2021 and brought into force w.e.f. 1st April, 2021 reads as under: “148A. The Assessing Officer shall, before issuing any notice under section 148,— (a) conduct any enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment; (b) provide an opportunity of being heard to the assessee, with the prior approval of specified authority, by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any, as per clause (a); (c) consider the reply of assessee furnished, if any, in response to the show-cause notice referred to in clause (b); (d) decide, on the basis of material available on record including reply of the assessee, whether or not it is a fit case to issue a notice under section 148, by passing an order, with the prior approval of specified authority, within one month from the end of the month in which the reply referred to in clause (c) is received by him, or where no such reply is furnished, within one month from the end of the month in which time or extended time allowed to furnish a reply as per clause (b) expires: Provided that the provisions of this section shall not apply -4- in a case where,— (a) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A in the case of the assessee on or after the 1st day of April, 2021; or (b) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any money, bullion, jewellery or other valuable article or thing, seized in a search under section 132 or requisitioned under section 132A, in the case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (c) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any books of account or documents, seized in a search under section 132 or requisitioned under section 132A, in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, relate to, the assessee. Explanation.—For the purposes of this section, specified authority means the specified authority referred to in section 151.” 4. Before opening of assessment proceedings under Section 148 of the IT Act, a preliminary enquiry in terms of Section 148 A has been conceived, which requires an opportunity to the assessee with a notice of not less than 7 days. Based on his reply, the assessing officer has to pass an order under Section 148A (d) within a period of one month from the end of the month in which the reply referred to in clause (c) is received by him or where no such reply is furnished, within one month from the end of the month in which time or extended time allowed to furnish a reply as per clause (b) expires. This time line is subject to certain exceptions under the proviso. Apparently, the assessing officer has to proceed within a time line. Petitioner’s insistence on repeated service of notice on its other e-mail address may not be possible as the time line in that case will be impossible to be adhered to. 5. On perusal of the provisions of Section 282 of the IT Act read with Rule 127 (2) (a) and (b) together, it appears that the notice could be transmitted and delivered electronically on the Email address available in the ITR furnished by the addressee to which the communication relates i.e. 2018-19 in the present case, which the petitioner has for reasons best known to him chosen not to annex to the writ petition. The petitioner has also not annexed the ITR of 2021-22 to show that the Email address available in his ITR of 2020-21, i.e page 13 of the counter affidavit, was changed. Rule 127 (2) (b) (iv) provides that such communication can be delivered or transmitted electronically on any e-mail address made -5- available by the assesse to the Income Tax Authority or any person authorized by such Income Tax Authority. 6. Learned counsel for the Department has submitted that the notice was also posted on the dedicated account of the petitioner on the Income Tax Portal as per Section 282 of the Act. 7. The inference from the aforesaid sequence of facts and the relevant provisions of the Income Tax Act is that the petitioner has not been able to make out a case that the address on which the notice under Section 148 A (2) (b) sent was not one in the ITR furnished by the assesse to which the communication related. Moreover, in the absence of the ITR for assessment year 2021-22, the department cannot also be blamed for sending the e-mail notice on the address indicated in the ITR 2020-21 assessment year. 8. We are also of the opinion that such communication could have been delivered or transmitted electronically on any of the e-mail addresses made available by the addressee to the Income Tax Authority including the one on which he has filed ITR 6 for assessment year 2020- 21 on which such notice under Section 148 A (b) has been delivered. We may also passingly observe that considering the strict time line stipulated for a preliminary enquiry under Section 148A before re-opening assessment proceedings, interference on such issues at this stage, when facts and documents on record do not substantiate the contention of the petitioner, are wholly uncalled for. 9. Writ petition, being devoid of merit, is dismissed. (Aparesh Kumar Singh, J.) (Deepak Roshan, J.) sm/pramanik "