Vijay Kansal Prop. Aarti Steels v. ITO, Ward 35 (1) Delhi & Ors.

1. Allowed, subject to just exceptions. W.P.(C) 14173/2022&CM No.43309/2022[Application filed on behalf of the petitioner seeking interim relief]

2. This writ petition is directed against the order dated 26.07.2022 passed under Section 148A(d), and the notice of even date i.e., notice dated 26.07.2022 issued under Section 148, as also the notice dated 24.05.2022 issued under Section 148A(b) of the Income Tax Act, 1961 [in short “Act”] concerning Assessment Year (AY) 2013-2014.

3. The record shows, that on 18.11.2022, a coordinate bench of this Court had made the following observations: “In the impugned order passed under Section 148A(d) of the Income Tax Act, 1961, the Assessing Officer has held, “Further analysis of Bank statement of Sh. Prem Rattan has revealed that M/s Arti Steels, Prop. Vijay Kumar Gupta is one of the beneficiary in the transaction with Sh. Prem Rattan.” It seems that the Assessing Officer has reached this conclusion on the information received from DDIT (Investigation) Unit-4(2), New Delhi. The Assessing Officer along with the concerned official from DDIT (Investigation) Unit-4(2), New Delhi, shall be personally present in Court along with the relevant records on the next date of hearing.”

4. As directed, Mr Vikash Mahto i.e., Assessing Officer (AO), Ward- 35(1), Delhi, and Mr Kumar Amit, Inspector of Income Tax, who is an official of the DDIT (Investigation) Unit-4(2), New Delhi are present in Court.

5. A perusal of the impugned order dated 26.07.2022 passed under Section 148A(d) of the Act does reveal, that the notice issued under Section 148A(b) dated 24.05.2022 was served on the petitioner, and the impugned order referred to above was passed under Section 148A(d) of the Act, based on the report of the Investigation Wing.

6. Paragraph 7.[2] of the impugned order discloses this aspect of the matter. For the sake of convenience, the said paragraph is extracted hereafter: “7.[2] In the reply furnished, the assessee has denied to have entered into transaction with Sh. Prem Rattan, Prop. Shree Shyam Industries during the year under consideration. He has also stated that on similar reason reassessment proceeding in his case was initiated for the A.Y 2011-2 and A.Y 2012-13 and during the course of reassessment proceeding, the mistake was pointed out and consequently the department passed the assessment order without making any addition. The contention of the assessee is not acceptable as in the report of the Investigation Wing, it is clearly mentioned that the assessee is a beneficiary from the transaction undertaken with Sh. Prem Rattan, Prop. Shree Shyam Industries. Beside, perusal of the Profit & Loss account in the ITR filed by the assessee for the year under consideration has revealed that he had declared Gross Receipt of Rs. 9009463/- and his purchases as Rs. 8643244/- whereas the credit reflected in his A/c No.1398002100044705 of M/s Aarti Steels maintained with PNB, Shastri Nagar Branch, Delhi during the year under consideration was Rs. 13993239/- and the debit amount was Rs.14037987/- respectively. Therefore, in can be inferred that all the credit reflected in the account has not been accounted for and the assessee has not demonstrate with documentary evidence the reason for difference thereof and the credit in the account of the assessee remain unexplained. Hence, the submission and explanation of the assessee is devoid of merit and found not tenable. The information and material in hand clearly suggest that an income of Rs. 13993239/chargeable to tax has escaped assessment. It is also evident from information available with the assessing officer that the income chargeable to tax for relevant assessment year, which has escaped assessment is more than Rs. 50 Lacs and is represented in the form of asset i.e an income of Rs. 13993239/- (unexplained credit in the account) has accordingly escaped assessment. On the basis of the material available on record, it is concluded that this is found to be a fit case for issuing of notice u/s 148 of the IT Act for the A.Y 2013- 14.”

7. Mr Kunal Sharma, who appears on behalf of the respondents/revenue, says that proceedings were taken out because of the information available with the Investigation Wing; although, what is not disputed, is that the impugned order under Section 148A(d) of the Act was passed based on the report, without examining the underlying material which was available with the Investigation Wing.

8. We may also note, that the petitioner’s stand, both before us and the assessing officer, was that he has had nothing to do with Mr Prem Rattan i.e., the proprietor of Shree Shyam Industries, during the period under consideration.

9. As a matter of fact, the petitioner claims that reassessment proceedings on the same facts were triggered for AY 2011-2012 and AY 2012-2013, which were dropped, once the petitioner pointed out this aspect to the concerned assessing officer. 9.[1] This facet of the matter is also noticed in paragraph 7.[2] of the impugned order, passed under Section 148A(d) of the Act, although the petitioner was unable to obtain relief as was given to him in AY 2011-2012 and AY 2012-2013.

10. Given these circumstances, we have no hesitation in setting aside the impugned order dated 26.07.2022 passed under Section 148A(d) and notice of even datei.e., 26.07.2022 passed under Section 148 of the Act.

11. Liberty is, however, given to the respondents/revenue to take the next steps in the matter, albeit as per law.

12. In case fresh proceedings are commenced, notice shall issue to the petitioner. In such eventuality, personal hearing will be accorded to the petitioner’s authorized representative.

13. The writ petition is disposed of in the aforesaid terms.

14. Consequently, pending application shall stand closed.

RAJIV SHAKDHER, J TARA VITASTA GANJU, J DECEMBER 2, 2022 aj Click here to check corrigendum, if any