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2022 Supreme(Online)(DEL) 2499
$~237 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7406/2022 DIVYA CAPITAL ONE PRIVATE LIMITED (EARLIER KNOWN AS DIVYA PORTFOLIO PRIVATE LIMITED) ..... Petitioner Through: Mr.Ved Jain, Mr. NischayKantoor and Ms. Richa Mishra, Advocates.
versus ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 7(1)
DELH & ANR. ..... Respondents Through: Mr.SanjayKumar with Mr.Easha Kadian , Advocates for Revenue.
% Date of Decision: 12th May, 2022 CORAM:
HON'BLE MR. JUSTICE MANMOHAN HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
J U D G M E N T
MANMOHAN, J (Oral):
C.M.No.22640/2022 Exemption allowed, subject to all just exceptions.
Accordingly, the application stands disposed of. W.P.(C) No.7406/2022 & C.M.No.22639/2022
1. Present Writ Petition has been filed challenging the Notice dated 17th March, 2022 issued under Section 148A(b) of the Income Tax Act, 1961 (‘the Act’) as well as the Order dated 04th April, 2022 passed by the Assessing Officer under Section 148A(d) and the consequential impugned notice dated 04th April, 2022 issued under Section 148 of the Act.
2. Learned counsel for the Petitioner contends that the impugned Order dated 04th April, 2022 under Section 148A(d) has been passed without considering the replies dated 24th March and 31st March, 2022 filed by the Petitioner to the show cause notice. He states that the petitioner filed a preliminary response to the above said show cause notice whereby the petitioner objected to the legal validity of the notice under Section 148A(b) on the ground that there was no information that suggested that income had escaped assessment. The petitioner further requested respondent No.1 to provide the information/documents, relied upon for assuming jurisdiction, which suggest that income had escaped assessment and further requested a week’s time from date of sharing such information so that the petitioner could file a detailed para wise response. Although the information requested for was not shared with the petitioner, yet the petitioner filed a detailed para wise response dated 31st March, 2022 in respect of each of the transaction stated by the respondent in the show cause notice dated 17th March, 2022. The petitioner further submitted voluminous documentary evidences along with the said reply.
3. He further states that the impugned order is arbitrary, cryptic and without application of mind as a huge sum of Rs.10,07,05,88,04,543/- (Rupees One lakh seven hundred and five crores eighty-eight lakhs four thousand five hundred and forty-three only) is held to have escaped assessment without considering the return and business of the Petitioner. He states that there is no proper indication as to how income has escaped assessment. In this regard, he relies upon a tabular chart capturing para-
wise reasons recorded and the remarks in respect thereof as under:-
| Para no. of order u/s 148A(d) | Remarks |
| Para 2 Under para 2, at page no. 1 to page no.3 of the order, a table is provided which captures the list of transactions entered into by the Petitioner such as purchase of shares, sale of futures, sale of shares, purchase of mutual funds, sale of options, etc. The total of such table is Rs.10,07,05,88,04,543 | There is no allegation/comment as to what is wrong with such transactions. The Petitioner is a member of National Stock Exchange (NSE) and Bombay Stock Exchange (BSE) and these transactions are routine transactions carried out in the ordinary course of business of the petitioner considering the fact that the Petitioner is carrying business of share brokers, depository participant and investment in securities and trade in derivatives. Further, all these transactions are duly accounted for in the profit and loss account and return filed by the Petitioner. |
| Para 3 At para 3 page 3-4 of the order, a table is provided which captures some purchases made by the Petitioner to the tune of Rs.13,08,95,220. | This information is culled out from GST returns. There is no allegation/comment as to what is wrong with such transactions and how income has escaped assessment. In any case, these transactions are carried out in the ordinary course of business and duly accounted for in the profit and loss account and return filed by the Petitioner. |
| Para 4 At para 4, a table is provide which captures details of certain receipts / payments/ receipts to the tune of Rs.20,95,64,704 on account of payments to contractors / professionals, payment of salary, interest income other than interest on securities etc. | These details have been |
