simultaneous issuance -notice u/s 148 and reasons

[rajul5234]

on a conjoint reading of recent delhi itat order of balwant wadhwa in ita 4806/10 dt. 14/1/11 and haryana

acrylic  decision of delhi high court at 308 i t r 38 there is an inherent indication iin the ratio that notice u/s

148 for reopening should be accompanied with reasons, or reasons must necessarily  be issued suo

motu  by the officer  immidiately thereafter.

r.k. patel, advocate.

please share views/ comments.  thanks

[pawansingla]

Your views are absoultely correct.Rather all professional should immediately call for copy of reasons recorded in case they get notice under swec. 148.If , possible they should ask for inspection of the file. in many cases , department officers are first issuing notice under sec. 148 and they are recording reasons.

[JB]

my confusion is that in GKN driveshaft (259 ITR 19), it has been stated that after notice u/s 148, return is to be filed and then to ask for copy of reasons. The Delhi ITAT decision and Haryana Acrylic were in the context of notice to be issued at the end of completion of 6 years which is the maximum time limit available under law. The emphasize was on that the reasonable time limit of furnishing reasons should not extend the maximum time limit available under the law. It is for putting a check that the time limit prescribed under the law does not practically become meaningless or otiose. In my thinking, these should be read in harmonious way that in normal case the reasons have to be provided after filing of return by the assessee in response to notice u/s 148. However, where notice u/s 148 is to be issued at finishing point of time limit, the reasons should be provided alongwith the notice or within reasonable time so as comply with the time limit prescribed in the law. If reasons are not furnishined within the time limit, the reassesmenent proceedigns will be bad in law. Kindly correct me if my thinking is not correct as i am also very keen on this issue.

[JB]

Bombay HC in case of Caprihans India (266 ITR 566) held that the assessee must file return before seeking reasons from the A.O.

[pawansingla]

Sir, that is correct. The discussions here is that while issuing notice under 148 , Assessing Officer has to record reasons. In actual practice , what is happening is that A.O first issues the notice u/s 148 ad then when assessee seeks copy of reasons recorded , he records the reasons  for reopening. This practice is legally wrong. Because the reasons recorded give you jurisdiction to issue notice u/s 148. If you are issuing notice under 148 without recording reasons , it means you are acquiring jurisdiction without following the prcedure laid down in the act.

[JB]

Yes I agree that the same is not legally valid. Ther reasons give jurisdiction and therefore they should precede the issuance of notice u/s 148. Practicallly, i have also faced this type of situation.The authorities do not give reasons immediately even after filing return. The mechanism of approval etc. is also not working. These 2 decisions have helped the assessees to some extent. Thank you for clarifying my confusion.   

[rajul5234]

so far as approval is concerned, some officers are of the view that it is procedural.

however, in one writ petition challenging 147/ 148 jurisdiction i have taken violence of mandatory statutory

condition u/s 151 as one of the main grounds on the strength of 113 I T R 22 (guj.) p.v. doshi's case

since alongwith reasons no approval/santion is given to assessee. dept. senior standing counsel has

stated that approval is there, but copy/ any other proof  is not annexed in affidavit in rejoinder. i am seriously pressing

this ground since case records are not shown to the hon'ble court to indicate fact of approval.

matter is sub- judice. notice is already issued with ad- interim relief.

i shall keep you informed of the development in the case,

r.k.patel

[rajul5234]

RULE is issued. Final hearing awaited.

interim relief is granted.

further proceedings in persuance to notice u/s 148 are stayed.

R. K. Patel.