IMPORTANT POINT
The main legal point established in the judgment is that the notice under Section 148A(b) must provide the assessee with not less than seven days to submit a reply, and the issuance of notices must comply with the jurisdiction and provisions of the Income Tax Act.

JUDGMENT :

BHARGAV D. KARIA, J.

1. Heard learned advocate Mr.Hardik V. Vora for the petitioner and learned Senior Standing Counsel Mr.Varun K. Patel with learned advocate Mr. Dev Patel for the for the respondent.

2. Rule, returnable forthwith. Learned Senior Standing Counsel Mr.Varun Patel waives service of notice of rule for and on behalf of the respondent.

3. Having regard to the controversy involved in the petition in narrow compass, the same is taken up for final hearing with consent of learned advocates for the respective parties.

4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 26th March, 2022 passed under Section 148A(d) of the Income Tax Act, 1961 (for short ‘the Act’) as well as the notice dated 29th March, 2022 issued under Section 148 of the Act.

5. The brief facts of the case are as under :

5.1. The petitioner is an individual and filed her return of income for Assessment Year 2018-19 on 03.08.2018 declaring total income at Rs.8,80,390/-. The return of the income was processed under Section 143(1) of the Act.

5.2. A notice dated 24th March, 2022 under Section 148A(b) of the Act which was digitally signed at 03:31 PM on 26th March, 2022 was issued to the petitioner requiring the petitioner to submit response on 24th March, 2022.

5.3. It appears that thereafter the petitioner could not file the reply as no time was granted to the petitioner to file the reply by the respondent-Assessing Officer and the impugned order under Section 148A(d) was passed on 26th March, 2022 and thereafter, the impugned notice under Section 148 was issued on 29th March, 2022.

6.1. Learned advocate Mr.Hardik Vora for the petitioner submitted that the impugned notice under Section 148A(b) of the Act was issued as the Assessing Officer was required to give opportunity to the petitioner to file reply to such notice within a period of not less than seven days time from the date of issuance of notice, however, the notice under Section 148A(b) of the Act has not provided any time to the petitioner. It was pointed out that though the notice is dated 24th March, 2022, the same was digitally signed by the Assessing Officer on 26th March, 2022.

6.2. It was pointed out that in the impugned order dated 26th March, 2022 passed under Section 148A(d) of the Act, the Assessing Officer, in paragraph No.6 thereof, has stated that the petitioner has not filed the reply even after lapse of more than seven days which is not true and correct as no time was granted in the notice under Section 148A(d) to the petitioner to file reply and the order under Section 148A(d) was passed within two days.

6.3. It was further pointed out that in the impugned notice issued under Section 148 of the Act it was stated that the notice was issued after obtaining prior approval of Principal Commissioner of Income Tax, Ahmedabad (for short ‘the PCIT’) recorded on 25th March, 2022 which is prior to even digitally signing the notice under Section 148A(b) of the Act. It was therefore submitted that the Assessing Officer has no jurisdiction to issue notice contrary to the provisions of the Act.

7. On the other hand, learned Senior Standing Counsel Mr.Varun Patel for the respondent submitted that the matter may be remanded back to the Assessing Officer for granting time to the petitioner-assessee to submit the reply and thereafter, after considering the reply of the petitioner, within reasonable time the Assessing Officer shall pass a fresh order under Section 148A(d) of the Act.

8. Section 148A(b) of the Act reads as under :

“Section 148A(b): provide 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