ORDER :

Instant petition filed u/A. 226 of the Constitution assails notice dated 28-4-2023 issued u/S 148 of Income Tax on the ground that order dated 28-4-2023 passed u/S.148A(d) of INCOME TAX ACT does not satisfy the foundational prerequisite of Section 148(a) (d).

2. Submission of learned Senior Counsel - Shri G. N. Purohit while attacking the impugned order passed u/S 148A(d) is as follows:-

(i) Despite absence of any information suggesting that income chargeable to tax has escaped assessment, the impugned order u/S 148A(d) has been passed resulting in issuance of notice u/S 148.

(ii) Without taking into account the reply submitted by the petitioner/assesseee, the impugned order/notice have been issued/passed.

(iii) The notice u/S 148 is untainable on the anvil of statutory bar u/S 149(b) and also because of absence of books of accounts/documents/evidence revealing a case of escaped assessment.

3. Learned counsel for petitioner has relied upon the Coordinate Bench decision of this Court in Principal Commissioner of Income Tax -I vs. Shri Pukhraj Soni, 6-2-2019 and the decision of the Apex Court in Red Chilli International Sales vs. Income Tax Officer and another, 2023 SCC OnLine SC 237.

4. It is not disputed by petitioner that opportunity of being heard as contemplated by Section 148 A (b) & (c) was afforded by way of issuance of notice by the Revenue and obtaining reply of petitioner/assessee. However, the grievance is that information/evidence categorized as foundational material is not sufficient to suggest that any income chargeable to tax has escaped assessment with regard to the assessment year 2016-17. Thus the very nature and character of this information/evidence is questioned by petitioner/assessee.

4.1 The decision of the Co-ordinate Bench in the Principal Commissioner of Income Tax -I (supra) may not be of assistance to petitioner since it does not relate to Section 148A which was inserted in the INCOME TAX ACT w.e.f. 1-4-2021. As regards decision of the Supreme Court in Red Chilli International Sales (supra), it is seen that the Division Bench of High Court of Punjab & Haryana had dismissed similar petition u/A. 226/227 of the Constitution filed by petitioner/assessee therein by refusing to interfere in the order passed u/S 148A(d) on the ground that since proceedings are yet to be concluded, interference ought to be avoided at premature stage, especially in the absence of any jurisdictional error and in the face of alternative statutory remedy of rectification of error. Pertinently, the decision of Punjab & Haryana High Court in the case of Red Chilli International Sales (supra) was assailed before the Apex Court which passed the following order:

“1. Delay condoned.

2. We with the petitioner that the impugned judgment rejecting the writ petition on the ground of alternative remedy does not take into consideration several judgments of this Court, on the jurisdiction of High Court, as writ petitions have been entertained to be examined whether the jurisdiction preconditions for issue of notice under Section 148 of the INCOME TAX ACT , 1961 is satisfied. The provisions of reopening under the INCOME TAX ACT , 1961 have undergone an amendment by the Finance Act, 2021, and consequently the matter would require a deeper and in depth consideration keeping in view the earlier case law. Accordingly, we set aside the observations made by the High Court in the impugned judgment observing that the writ petition would not be maintainable in view of the alternative remedy, clarify that this issue would be examined in depth by the High Court if and when it arise for consideration. We do deem it open to examine this issue in the present case after having examined the notice under Section 148(a) (b) including the annexure thereto, the reply filed by the petitioner and the order under Section 148(a) (d) of the INCOME TAX ACT , 1961.

3. Recording the aforesaid, the special leave petition is disposed of. We clarify that the dismissal of