1. The first objection of the assessee is that the copy of approval not provided with notice under Section 148A(b) and order under Section 148A(d) but provided with notice under Section 148 which was issued on 31.08.2024.Here it may be mentioned that Section 148A(b) notice does not require any approval, however, the guidelines F.No.299/10/2022. Dir(Inv.III)/611
provide that approval order should be annexed with the order under Section 148A(d). Since the Assessing Officer has supplied the approval on 31.08.2024 and if the approval is prior to the date of passing 148A(d) order then it is a valid approval though it is not annexed with the order under Section 148A(d) which can only be said to be an irregularity but it will not invalidate the order under Section 148A(d). If the approval is after 30-08-2024 then the order under section 148A(d) is invalid.

2.The second point raised by the assessee is that assessee asked for documents on the basis of which the department wants to reopen the case. The department issued notice on the basis of investigation report but no inquiry was conducted by the officer who issued notice under Section 148A(b).It is for the Assessing Officer to decide whether he has to conduct an inquiry under Section 148A(a) or not. If from the inquiry report the Assessing Officer is satisfied that there is a case for reopening of the assessment then he may issue notice under Section 148A(b) directly and there may not be any need for making any inquiry.

3.The third objection of the assessee is that the assessee asked for statement of persons concerned and also cross examination of the person who gave statement but no opportunity was given and order was passed under Section 148A(d).In this respect, it may be mentioned that at this stage it is not necessary for the Assessing Officer to provide an opportunity for cross examination. What is required is that he is in possession sufficient material to come to conclusion that there is information which suggests that income chargeable to tax has escaped assessment. He is required to provide the material and copies of statement so as to enable the assesse to effectively reply the same. If income chargeable to tax has escaped assessment in that case he can pass an order under Section 148A(d), however, he is required to supply the copy of statements and he must deal with all the objections those are raised by the assessee. If that is not done it can be challenged in a writ petition before the Hon’ble High Court.

4.In the fourth answer the assessee has mentioned that the identity of the Assessing Officer who issued notice under Section 148A(b), order under Section 148A(d) and even notice under Section 148 issued on 31.08.2024 has been disclosed which is violation of faceless assessment and it is against various judgments passed by various High Courts.In this respect, it may be mentioned that if the notices are issued in a faceless manner through ITBA portal then even if the identity of the Assessing Officer is disclosed it will not invalidate the notice under Section 148. The Delhi High Court has recently held that the jurisdictional Assessing Officer has the jurisdiction to issue 148 notice. It is only faceless assessment that NFAC will come into play and then at that point of time the identity of the Assessing Officer should not be disclosed otherwise while issuing the notice if the identity of the Assessing Officer is disclosed it does not affect the validity of the notice.

5.The last query of the querist is whether the notice under Section 148 is valid or not. The above position will not invalidate the 148 notice. In my view, for the above defects the 148A(d) notice cannot be invalidated. Only the assessee can file a petition for direction to the Assessing Officer to provide all the material based on which 148A(b) notice has been issued. There are several judgments to say that the material has to be provided and this was also held in the case of Union of India vs. Ashish Agrawal (2022) 444 ITR 1(SC), wherein the Supreme Court has directed that all materials for issuance of notice under Section 148A(b) should be provided to the assessee. It may be noted that by the Finance Act-II, Section 148A has been totally restructured and in that section also it is provided that all material should be enclosed along with the show cause notice, though this provision has been made applicable from 29.09.2024 but it gives an inkling that it is mandatory for the Assessing Officer to provide the reason and material for issuance of such notice before issuing 148 notice.