SATISH KUMAR V. PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX

WPC/2640/2023

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The case involves Satish Kumar, the petitioner, who challenged the order and notices issued by the Income Tax Officer, Ward-3(1), Ranchi, under Section 148A and Section 148 of the Income Tax Act, 1961, for the Assessment Year 2016-17. The petitioner argued that he was not given the minimum required time to respond to the show-cause notice issued under Section 148A(b), as the e-reply facility was closed prematurely on 26.03.2023, before the deadline of 29.03.2023. The respondent contended that the petitioner should have approached the department directly if he faced issues with the online submission. The court found that the petitioner was not provided the statutory minimum of 7 clear days to respond, leading to the quashing of the notices and order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 763547 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 28-08-2023
• Assessment Year: misc
• Other Referred Cases: Pioneer Motors (Private) Ltd. Vs. Municipal Council, Nagercoil
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: R N SAHAY
• Assessee Lawyers: AMRITA SINHA
• Keywords: Income Tax Return; Quashing; Setting Aside; Show cause notice; Technical reason; E-reply; Minimum one week time
• Section: 148; 143(1); 148A

Judgement Text

"1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 2640 of 2023 …….. Satish Kumar ..… Petitioner Versus 1. Principal Chief Commissioner of Income Tax having Office at Central Revenue Building, Beerchand Patel Marg, Patna, Bihar. 2. Income Tax Officer, Ward-3(1), Ranchi having its office at Central Revnue Building (Annexe), 5A Main Road, Ranchi, Jharkhand ..... Respondent --------- CORAM: Hon’ble Mr. Justice Rongon Mukhopadhyay Hon’ble Mr. Justice Deepak Roshan --------- For the Petitioner : Ms. Amrita Sinha, Adv. For the Respondent : Mr. R. N. Sahay, Sr. SC --------- 06/28.08.2023 Per Deepak Roshan J. The petitioner has prayed for quashing and setting aside the order passed under clause (d) of Section 148A of the Income Tax Act, 1961 dated 31.03.2023 (Annexure-4) and the consequential notices issued under Section 148 dated 31.03.2023 (Annexure-4/1) for the Assessment Year 2016-17 by the jurisdictional assessing office i.e., by the Income Tax Officer, Ward-3(1), Ranchi-respondent No.2 2. Brief fact of the case is that the petitioner is deriving income from salary and is an old income tax assessee. During the relevant period, on 27.03.2017 the petitioner has filed his income tax return for the assessment year 2016-17 showing total income of Rs.2,69,380/- which was accepted under Section 143(1) of the Income Tax Act, 1961 (hereinafter to be referred as the Act). On 22.03.2023, a show-cause notice under section 148(A)(b) of the Act for the Assessment Year 2016-17 was issued by the respondent No.2 for submitting e-reply on or before 29.03.2023 electronically at www.incometax.gov.in. 3. The grievance of the petitioner is that when he logged 2 on at the income tax portal for filing the reply to the aforesaid show cause notice, he found that the e-reply was already closed on 26.03.2023 and finally on 31.03.2023 an order under Section 148A(d) of the Act was passed by the respondent No.2. The petitioner is aggrieved by the aforesaid action of the respondent revenue. 4. Ms. Amrita Sinha, learned counsel for the petitioner draws attention of this Court towards the provisions made under Section 148A (b) and submits that as per the Act minimum one week time is required for giving reply but admittedly; on 28.03.2023 itself when the petitioner tried to upload the reply on the given website of the revenue, it was found that the time for e-reply was already closed on 26.03.2023 itself which is against the provisions of the statute; as such, the instant application deserves to be allowed and the matter may be remitted back to the concerned respondent for giving an opportunity to the petitioner to file reply to the notice issued under Section 148A(b) of the Act. 5. Mr. R. N. Sahay, learned counsel appearing for the revenue opposed the contention of the petitioner and submits that there might be a technical reason when the website was showing closed as such it was the duty of the petitioner to approach the concerned department and file hard copy of the reply but he could not controvert Annexure-3, which clearly transpires that on 26.03.2023 itself, e-submission was closed. 6. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, admittedly; the show cause notice was issued on 22.03.2023 and in paragraph no.3 of the said notice it was categorically indicated that the reply to the aforesaid notice 3 should be submitted on or before 29.03.2023; however, the e-reply was showing already closed on 26.03.2023 and finally on 31.03.2023 an order under Section 148A(d) of the Act was passed by the respondent No.2. 7. To decide the lis involved in the instant application it is necessary to peruse the provisions of the Act which governs the issue in hand, which is quoted herein below:- Section 148A(b) of the I.T. Act. “148A (b) provide an opportunity of being heard to the assessee, 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);” From bare perusal of Section 148A(b) it appears that minimum 7 days is required to be given to the Assessee for filing reply. This 7 day is to be calculated by ignoring the date of issue and the last date of submission. In other words, minimum 7 clear days has to be provided to the Assessee for filing reply. In this regard reference may be made to the case of Pioneer Motors (Private) Ltd. Vs. Municipal Council, Nagercoil reported in AIR 1967 SC 684 wherein at paragraph 8 and 9 the Hon’ble Apex Court has deliberated the issue with regard to counting of dates. “8. The words “not being less than one month” do imply that clear one month's notice was necessary to be given, that is, both the first day and the last day of the month had to be excluded. ………………..……….. “When…… ‘not less than’ so many days are to intervene, both the terminal days are 4 excluded from the computation”. ……………………………………. 9. ………..………… In every case the words have to be construed in the context taking into consideration the language used and the object to be achieved. As we have said above, the use of the words “not being less than one month” implies the giving of a clear month excluding both the first and the last day of the month. …………………………………………………………….. Emphasis supplied. 8. Thus, we see that the law is no more res-integra; inasmuch as, the words ‘not be less than 7 days’ implies that clear seven days is obligatory to be given to the Assessee. Thus, on the one hand the notice which was given to the petitioner under Section 148A(b) was not in accordance with the provision of the Act, inasmuch as, only 6 clear days was given to him. So, on this score alone the notice under Section 148A(b) deserves to be quashed and set aside. 9. Moreover, from bare perusal of Annexure-3 which is the screenshot of e-proceeding clearly indicates that on 26.03.2023 itself, e-submission was closed, thus the petitioner was prevented from submitting his reply online. The argument of Mr. Sahay appearing for the revenue that it was the duty of the petitioner to approach the concerned authority is misconceived and without any basis and is fit to be rejected inlimine in view of the specific provision made under the Act itself. Thus, the impugned orders requires interference. 10. Consequently, the impugned order dated 31.03.2023 (Annexure-4) and the consequential notices issued under Section 148 dated 31.03.2023 (Annexure-4/1) for the Assessment Year 2016-17 is hereby quashed and set aside. The matter is remitted back to the respondent No.2 to allow the petitioner for filing its reply by giving him at 5 least 7 days clear notice and not more than 30 days to file its reply and thereafter proceed in accordance with law. 11. As a result, the instant application stands allowed. Pending I.A., if any, is also closed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Fahim/-AFR- "