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Hasmukhbhai Girdharilal Chopra Vs National Faceless Assessment Centre (Gujarat High Court)
Gujarat High Court held that reassessment order passed under section 148 of the Income Tax Act is liable to be quashed and set aside due to non-consideration of the reply in the assessment order. Accordingly, order set aside and matter remanded back to AO.
Facts- This petition is filed challenging the Assessment Order dated 29.03.2022 passed by the respondent under Section 147 read with Section 144B of the Income Tax Act, 1961 and demand notice of even date issued under Section 156 of the Act for Assessment Year 2014-15 on the ground that there is violation of principles of natural justice and non-consideration of the reply filed by the petitioner in response to the show-cause notice dated 24th March, 2022.
Conclusion- Held that in view of the undisputed fact with regard to granting of only two days’ time to file the reply to the show-cause notice as well as non-consideration of the reply in the impugned Assessment Order by categorically making a statement that the petitioner failed to file any reply in response to the show-cause notice, the Assessment Order is liable to be quashed and set aside. Thus, without entering into merits of the matter, only on the aforesaid ground of non-consideration of the reply which was already filed by the petitioner on 27th March, 2022, the impugned Assessment Order dated 29thMarch, 2022 as well as the demand notice of even date are required to be quashed and set aside and the same are hereby, quashed and set aside and the matter is remanded back to the Assessing Officer to pass a fresh de-novo order after considering the reply filed by the petitioner within a period of twelve weeks from the date of receipt of the copy of this order.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. Heard learned Senior Advocate Mr.Tushar Hemani with learned advocate Ms.Vaibhavi K. Parikh for the petitioner and learned Senior Standing Counsel Mr.Varun K. Patel with learned advocate Mr.Dev D. Patel for the respondents.
2. This petition is filed challenging the Assessment Order dated 29.03.2022 passed by the respondent under Section 147 read with Section 144B of the Income Tax Act, 1961 (for short ‘the Act’) and demand notice of even date issued under Section 156 of the Act for Assessment Year 2014-15 on the ground that there is violation of principles of natural justice and non-consideration of the reply filed by the petitioner in response to the show-cause notice dated 24th March, 2022.
3. The brief facts of the case are as under :
3.1. During the year under consideration, the petitioner was engaged in the business of wholesale as well as retail business of gold and silver bullion and jewellery. The Petitioner filed his return of income on 07.11.2014 declaring total income at Rs.8,07,529/-.
3.2. Thereafter, the case of the petitioner was reopened by issuance of notice dated 31.03.2021 under Section 148 of the Act. The respondent vide notice dated 24.12.2021 issued under section 142(1) of the Act, called upon the petitioner to furnish various details and the reasons for reopening were also supplied vide said notice.
3.3. The respondent issued a show-cause notice dated 24.03.2022 calling upon the petitioner to show cause as to why proposed variation should not be made and assessment should not be completed accordingly. The petitioner was granted time till 23:59 hours of 27.03.2022 for furnishing reply to the show-cause notice.
3.4. It is the case of the petitioner that vide letter dated 27.03.2022, the petitioner furnished detailed reply to the aforesaid show-cause notice and vide letter dated 28.03.2022, also raised objections against reopening and requested the respondent not to proceed further with reassessment proceedings till the objections raised by the Petitioner against reopening are disposed of. However, the respondent passed the impugned Assessment Order dated 29th March, 2022 under Section 147 read with Section 144B of the Act determining total income of the petitioner at Rs. 177,36,21,153/- as against the returned income of Rs. 19,85,850/- and consequential demand notice was also issued for the year under consideration. The petitioner being aggrieved and dis-satisfied with the said Assessment Order, preferred these petitions before this Court.
4.1. Learned Senior Advocate Mr.Tushar Hemani for the petitioner submitted that the show-cause notice dated 24th March, 2022 was issued granting time till 23.59 hours on 27th March, 2022 for proposed variation. It was submitted that though time of only two days was granted to the petitioner to file reply, the petitioner was able to file reply on 27th March, 2022.
4.2. Learned Senior Advocate Mr.Tushar Hemani invited the attention of the Court to the impugned Assessment Order wherein, the Assessing Officer has stated that the petitioner has not filed any reply to the show-cause notice dated 24th March, 2022. It was therefore submitted that without consideration of the reply filed by the petitioner, the impugned Assessment Order is passed in hurry.
4.3. It was also pointed out that the petitioner has also raised the objections on 28th March, 2022 for re-opening of the assessment, however, the same is also not disposed of by any speaking order passed by the respondent-Assessing Officer.
5. The above submissions are not refuted by learned Senior Standing Counsel Mr.Varun K. Patel for the respondent.
6. In view of the above stated undisputed fact with regard to granting of only two days’ time to file the reply to the show-cause notice as well as non-consideration of the reply in the impugned Assessment Order by categorically making a statement that the petitioner failed to file any reply in response to the show-cause notice, the Assessment Order is liable to be quashed and set aside.
7. We are therefore of the opinion that, without entering into merits of the matter, only on the aforesaid ground of non-consideration of the reply which was already filed by the petitioner on 27th March, 2022, the impugned Assessment Order dated 29thMarch, 2022 as well as the demand notice of even date are required to be quashed and set aside and the same are hereby, quashed and set aside and the matter is remanded back to the Assessing Officer to pass a fresh de-novo order after considering the reply filed by the petitioner within a period of twelve weeks from the date of receipt of the copy of this order.
8. The petition is accordingly disposed of. Notice is discharged. Interim-relief, if any, stands vacated forthwith.
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