IMPORTANT POINT
Reopening of assessment under Section 148 requires valid reasons; mere incorrect information cannot justify such action.

ORDER :

Niral R. Mehta, J.

1. Heard learned advocate Mr. Manish J. Shah for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for learned Senior Standing Counsel Mrs. Kalpana Raval for the respondent.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge notice under Section 148 of the Income Tax Act, 1961 (for short ‘the Act’), by which the Revenue has sought to reopen the assessment for the Assessment Year 2012-13.

3. Brief facts of the case are as under:

3.1 The petitioner–assessee submitted a return of income for the Assessment Year 2012-13 on 18.9.2012, declaring total income of Rs.12,12,520/-.

3.2 A notice under Section 148 of the Act dated 31.03.2018 was issued upon the petitioner. Pursuant thereto, the petitioner has filed her response on e-proceedings portal stating that return for the Assessment Year 2012-13 has already been filed vide acknowledgment no.8965711180912, the same may be considered as return filed under Section 148 of the Act. It was further requested to supply copy of reasons recorded for reopening of Assessment under Section 147 of the Act. A copy of reasons was forwarded vide letter dated 12.07.2018.

3.3. The petitioner vide letter dated 01.08.2018 uploaded her objection on e- proceedings portal. Again vide letter dated 18.09.2018, detailed objections were filed against the reopening of the assessment and the same was uploaded on e-proceeding portal, wherein in particular it was pointed out that the said show-cause notice was issued on wrong facts. The respondent, however, vide order dated 05.10.2018 disposed of the objections filed by the petitioner wherein reassessment under Section 147 held to be justified.

3.4. Being aggrieved and dissatisfied, the petitioner has approached this Court for appropriate writ, order, direction in the interest of justice.

3.5 Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of this petition for the appropriate reliefs.

4. We have heard learned advocate Mr. Manish J. Shah for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent.

5. Learned advocate Mr. Manish J. Shah for the petitioner, while assailing the impugned notice and the order disposing the objection, has made the following submissions:

5.1 Learned advocate Mr. Manish Shah submitted that the assessment of the petitioner sought to be reopened is based on factually incorrect information that the petitioner has not disclosed profit of Rs.3,13,000/-.

5.2 Learned advocate Mr. Shah further submitted that whereas the fact is the aforesaid profit was duly disclosed in the return of income and has also been taxed accordingly. Thus, according to learned advocate Mr. Shah it is an issue under Section 148 of the Act for the Assessment Year 2012-13 can not be sustained being based on the wrong information and facts.

5.3 To substantiate aforesaid contention, learned advocate Mr. Shah has placed reliance on Kapadia Money Changers (P) Ltd. v. Assistnat Commissioner of Income Tax reported in (2019) 108 taxmann.com 275 (Guj.).

5.4 Learned advocate Mr. Shah further submitted that reopening of the assessment in the case of the petitioner is based on borrowed satisfaction and that there is complete non-application of mind on the information so received.

5.5 Thus, according to learned advocate Mr. Shah the notice issued on the basis of the borrowed satisfaction which is not valid in the eyes of law.

5.6 Learned advocate Mr. Shah submitted that from the reasons recorded it is abundantly clear that the Assessing Officer wanting to make fishing and roving enquiries and thereby the notification of provision of Section 148 of the Act for such fishing and roving enquiries is not permissible.

5.6 By making the above submission, learned advocate Mr. Shah has requested this Court to allow this petition as prayed for.

6. Per contra, learned Senior Standing Counsel Mr. Karan Sanghani while opposing the p