# Pushpa Yadav v. Income Tax Officer, Ghaziabad & Ors

- **Citation:** (2022) 5 ILRA 889
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-12
- **Case number:** Writ Tax No. 564 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpa-yadav-v-income-tax-officer-ghaziabad-ors-48604
- **Pages:** 6

## Headnote

A. Tax Law - Income Tax Act, 1961 -
Section 148 - The Court did not find any
discrepancy in the reason to believe recorded by
the authority in notice under Section 148 of the
Act.
The
authority
proceeded
with
the
information received from the Investigation
Wing and after Independent verification, he
came to the conclusion the assessee has made
huge cash. (Para 11)
Writ Rejected. (E-10)

## Text

5 All. Pushpa Yadav Vs. Income Tax Office, Ghaziabad & Ors.
889
escaped assessment amounts to or is likely
to amount to one lakh rupees or more for
that year,

(c) if four years, but not more
than sixteen years, have elapsed from the
end of the relevant assessment year unless
the income in relation to any asset
(including financial interest in any entity)
located outside India, chargeable to tax,
has escaped assessment."

8. The provisions of Section 149(1) of
the Act of 1961 are plain and unambiguous.
Bare reading of clause (a) of sub-section
(1) of Section 149 leaves no manner of
doubt that normal period of limitation for
issuance of notice under Section 148 of the
Act of 1961 is four years from the end of
the relevant assessment year, unless the
case falls under clause (b) or clause (c).
Thus, after normal period of limitation of
four years has expired, larger period of
limitation under clause (b) or (c) of subsection (1) of Section 149 of the Act of
1961 may be invoked, if circumstances so
exist.

9. In the present set of fact, the normal
period of limitation of four years was
available to the Assessing Authority till
31.3.2020 which was extended for one year
by the aforesaid Ordinance, 2020 and the
notification issued thereunder. Thus, the
normal period of limitation available to the
Assessing Authority on the facts of the
present case was till 31.3.2021. The
impugned notice under Section 148 of the
Act, 1961 was issued by the Assessing
Authority on 30.3.2021 which does not
require any prior approval of the Principal
Commissioner in terms of the then existing
provisions of Section 151 of the Act, 1961.
Therefore, the impugned notice under
Section 148 of the Act of 1961 issued by
the Assessing Authority is wholly valid and
same has been issued well within the period
of limitation.

10. For all the reasons aforestated, we
do not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
----------
(2022)05ILR A889
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 564 of 2022

Pushpa Yadav ...Petitioner
Versus
Income Tax Officer, Ghaziabad & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Mahandra Pratap, Sri Anurag Yadav, Sri
R.R. Agarwal (Sr. Advocate)

Counsel for the Respondents:
A.S.G.I., Sri Gaurav Mahajan, Sri Gopal
Verma, Sri Krishna Agarwal

A. Tax Law - Income Tax Act, 1961 -
Section 148 - The Court did not find any
discrepancy in the reason to believe recorded by
the authority in notice under Section 148 of the
Act.
The
authority
proceeded
with
the
information received from the Investigation
Wing and after Independent verification, he
came to the conclusion the assessee has made
huge cash. (Para 11)
Writ Rejected. (E-10)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
890 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Jayant Banerji, J.)

1. Heard Shri R.R. Agarwal, learned
Senior Advocate assisted by Shri Mahendra
Pratap and Shri Anurag Yadav, learned
counsel for the petitioner, Shri Krishna
Agarwal,
learned
counsel
for
the
respondent
nos.1
and
2/Income
Tax
Department and Shri Gopal Verma, learned
counsel for the respondent no.3.

2. This writ petition has been filed
praying for the following reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari
quashing the order dated 03.02.2022 passed
by the National Faceless Assessment
Centre Delhi respondent no.2 rejecting the
objection of the petitioner to the reasons
recorded for re-opening of the assessment
for A.Y. 2016-17 (Annexure-5 to the writ
petition).

(ii) Issue a writ, order or direction
in the nature of certiorari quashing the
notice issued under section 148 of the
Income Tax Act for A.Y. 2016-17 dated
32.03.2021 issued by the Income Tax
Officer (1), Ward 2(2)(1) Ghaziabad,
respondent no.1 (Annexure-2 to the writ
petition)."

3. Learned Senior Advocate for the
petitioner submits that the impugned notice
dated 30.03.2021 under Section 148 of the
Income Tax Act, 1961 (hereinafter referred
to as the 'Act, 1961') has been issued to the
petitioner by the respondent no.1 on the
basis of certain information received on
account of the search conducted in the
premises of M/s Celebrations City Projects
(P) Ltd. Therefore, at best, the proceedings
against the petitioner-assessee may be
initiated in accordance with the provisions
of Section 153C of the Act, 1961 which
starts
with
non-obstante
clause.
He,
therefore, submits that the impugned notice
under Section 148 of the Act, 1961 and the
impugned order dated 03.02.2022 rejecting
the objection of the petitioner, are wholly
unsustainable and deserve to be quashed
and the entire proceeding under Section
148 is without jurisdiction.

4.

Learned
counsel
for
the
respondents have supported the impugned
notice and the order.

5. We have carefully considered the
submissions of learned counsels for the
parties and perused the records of the writ
petition.

6. Reason supplied by the assessing
authority to the petitioner for initiating
proceedings under Section 147/148 of the
Act, 1961, is reproduced below:-

"It was informed by DDIT (Inv.)-
1(3),
Ghaziabad
vide
letter
dated
26.03.2021 dated during the enquiry
proceedings, it was found that that assessee
has made cash amount of Rs. 1,18,84,000/-
for purchase of units/shops/space etc. in
Red Mall, Ghaziabad to M/s Celebration
City Projects Pvt Ltd. during the F.Y. 201516.

On perusal of the record it is seen
that the assessee has filed ITR for A.Y.
2016-17 on 28.07.2016 declaring income of
Rs.7,32,670/-. As per record the case has
not been assessed u/s 143(3) of the Income
Tax Act, 1961.

I have perused the record in light
of the above information and through
independent verification of return of the
5 All. Pushpa Yadav Vs. Income Tax Office, Ghaziabad & Ors.
891
assessee
with
the
perusal
of
the
statement recorded on oath came to
independent conclusion that the assessee
has made huge cash of Rs.1,18,84,000/-
for purchase of units/shop etc, in Red
Mall to M/s Celebration City Projects
Pvt Ltd. during the F.Y. 2015-16 1.e. A.Y.
2016-17. Hence, there is reason to believe
that there is escapement of income from the
returned income of the assessee. I have
reason to believe that there is escapement
of more than Rs. 1,18,84,000/- and further
additional income and any other income
which can come in the the knowledge
subsequently in the course of proceedings
u/s 147(b), therefore the issue of notice u/s
148 of the income tax act, 1961 is
necessary in this case. Hence, the case of
Smit Pushpa Yadav is being proposed for
approval under the provision of section
151(1) of the I.T. Act, 1961."

(emphasis supplied)

7. While rejecting the objection of the
petitioner by the impugned order dated
03.02.2022, the respondent no.1 has
observed in paragraphs 2, 5.2.2 and 5.3.2.
as under:-

"2. In the case of the assessee,
information has been received from the
DDIT (Inv)-(1)(3) by letter dated 26/3/2021
that during the course of enquiry, it was
found that the assessee has made
payment by cash of an amount of
Rs.1,18,84,000/-,
for
purchase
of
units/shops/space in the Red Mall,
Ghaziabad to the seller M/s Celebration
City Projects P Ltd. during the F.Y 201516.

The A.O has stated that as per
details available, the assessee has filed
ITR for A.Y 2016-17 on 28/07/2016
declaring income of Rs.7,32,670/-, which
was processed u/s 143(1) of the Act. The
A.O has perused the available records of
the
assessee
in
the
light
of
the
information
received
from
the
Investigation
Wing
and
through
independent verification of the return of
the assessee with the perusal of the
statement recorded on oath, came to the
conclusion that the assessee has made the
cash payment of Rs.1,18,84,000/- for
purchase of units/shops in Red Mall to
the seller M/s Celebration City Projects
P Ltd. during the FY 2015-16.

The A.O has therefore, analysed
the information with the return of income
filed by the assessee for the relevant period,
the source of cash deposits was not
disclosed in the return of income filed,
which is chargeable to tax as discussed in
paragraph above and the assessee was
assessable under the Act. In view of the
above facts, the A.O had reason to believe
that the assessee has not disclosed fully and
truly all material facts for the year under
consideration and the said cash deposits of
Rs 22,85,000/- is the income of the
assessee that has escaped assessment within
the meaning of sec. 147 of the Income Tax
Act, 1961.

Accordingly, the assessment was
re-opened by issue of notice u/s.148 of the
I.T. Act dated 30/3/2021, after taking
required approval from the competent
authority in the Department as per the
provisions of section 151 of the Income
Tax Act, 1961.

...........

5.2.2. The arguments of the
assessee are unfounded. In the reasons
recorded by the A.O, the A.O has clearly
892 INDIAN LAW REPORTS ALLAHABAD SERIES
specified that he has analysed the
information with the return of income
filed by the assessee for the relevant
period and found that the source of cash
deposits was not disclosed in the return
of income filed. In view of the above facts,
the A.O had reason to believe that the
assessee has not disclosed fully and truly
all material facts for the year under
consideration and the said cash payment of
Rs.1,18,84,000/- made by the assessee is
the income of the assessee that has escaped
assessment within the meaning of sec. 147
of the Income Tax Act, 1961.

.........

5.3.2 5.The assessees's contention
is entirely incorrect. In the assessee's case,
there is reliable information from the
Investigation Wing gathered during the
course of search and survey operations in
the case of M/s Celebration City Projects P
Ltd. that payment in cash has been received
from the assessee for sale of units/shop
rooms from M/s Celebration City Projects
P Ltd. The enquiry report received from
the Investigation Wing from the DDIT
(Inv). (1)(3) by letter dated 26/3/2021
giving the details of the transaction was
analysed with the return of income filed
by the assessee. The A.O then arrived at
an independent opinion of income having
escaped assessment within the meaning
of section 147 of the I.T. Act in the case
of the assessee.

There are broadly two limitations
on the power of the revenue to reopen
assessments - (i) there must be some
tangible material based on which the
reopening is being undertaken which leads
to a reason to believe that there has been
escapement
of
income
and
(ii)
the
reopening should not be a "mere change of
opinion. Furthermsore, information from
the Investigation Wing, can be basis for
issue of notice u/s.148, as held in the
following judicial rulings -

1. AGR Investment Ltd. Vs.
Addl.CIT&Anr. (Delhi) 333 ITR 146.

2. Shalimar Buildcon (P) Ltd.
V/s. ITO ITAT (Jaipur), 136 TTJ 701.

(emphasis supplied)

8. Section 153C(1) of the Act, 1961
reads as under :-

"153C.
(1)
Notwithstanding
anything contained in section 139, section
147, section 148, section 149, section 151
and section 153, where the Assessing
Officer is satisfied that,-

(a) any money, bullion, jewellery
or other valuable article or thing, seized or
requisitioned, belongs to; or

(b) any books of account or
documents, seized or requisitioned, pertains
or pertain to, or any information contained
therein, relates to,

a person other than the person
referred to in section 153A, then, the books
of account or documents or assets, seized
or requisitioned shall be handed over to the
Assessing Officer having jurisdiction over
such other person and that Assessing
Officer shall proceed against each such
other person and issue notice and assess or
reassess the income of the other person in
accordance with the provisions of section
153A, if, that Assessing Officer is satisfied
that the books of account or documents or
assets seized or requisitioned have a
bearing on the determination of the total
income of such other person for six
assessment years immediately preceding
the assessment year relevant to the previous
5 All. Pushpa Yadav Vs. Income Tax Office, Ghaziabad & Ors.
893
year in which search is conducted or
requisition is made and for the relevant
assessment year or years referred to in subsection (1) of section 153A:

Provided that in case of such
other person, the reference to the date of
initiation of the search under section 132 or
making of requisition under section 132A
in the second proviso to sub-section (1) of
section 153A shall be construed as
reference to the date of receiving the books
of account or documents or assets seized or
requisitioned by the Assessing Officer
having jurisdiction over such other person :

Provided further that the Central
Government may by rules made by it and
published in the Official Gazette, specify
the class or classes of cases in respect of
such other person, in which the Assessing
Officer shall not be required to issue notice
for assessing or reassessing the total
income
for
six
assessment
years
immediately preceding the assessment year
relevant to the previous year in which
search is conducted or requisition is made
and for the relevant assessment year or
years as referred to in sub-section (1) of
section 153A except in case where any
assessment or reassessment has abated."

9. From the reason recorded by the
assessing authority, it is evident that the
assessing authority was having some
information from the DDT (Inv.)-1(3),
Ghaziabad vide letter dated 26.03.2021. He
independently verified the information
received from the return of income of the
assessee and also perused the statement
recorded on oath and then he came to an
independent conclusion that the assessee
had made huge cash of Rs.1,18,84,000/- for
purchase of units/shop etc. in Red Mall to
M/s Celebrations City Projects (P) Ltd.
during the Financial Year 2015-16. The
reason to believe recorded by the assessing
authority is not on the basis of any books of
account or document seized by Income Tax
Authorities in the search conducted on M/s
Celebrations City Projects (P) Ltd.

10. Even if it is presumed that copies
of certain statements on oath recorded
during the course of search by the
Investigating Wing, were forwarded to the
respondent no.1 alongwith the report, it
cannot be said to be either the books of
account or document seized so as to fall it
within the ambit of clause (b) of subsection (1) of Section 153C of the Act,
1961.

11. Perusal of the reason recorded by
the assessing authority as aforequoted
reveals that the assessing authority has
proceeded
on
the
basis
of
certain
information received from the Investigating
Wing and after independent verification, he
came to the conclusion that the assessee
had made huge cash of Rs.1,18,84,000/-,
which caused him to issue notice to the
petitioner under Section 148 of the Act,
1961. It is also admitted case of the
petitioner that no assessment was made by
the assessing authority for the Assessment
Year 2016-17. As per Explanation 2(b)
appended to Section 147 of the Act, 1961,
if a return of income has been furnished by
the assessee but no assessment has been
made and it is noticed by the assessing
officer that the assessee has understated
the income or has claimed excessive loss,
deduction, allowance or relief in the return;
then it shall be deemed to be a case where
income chargeable to tax has escaped
assessment.

12. In view of the above discussions,
we find that neither the impugned notice
issued by the respondent no.1 under
894 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 148 of the Act, 1961 suffers from
any illegality nor the impugned order
rejecting the objection of the petitioner
suffers from any infirmity, which, under the
circumstances, cannot be interfered with.

13. For all the reasons aforestated, we
find that the writ petition has no substance
and is, therefore, dismissed.

14. It shall be open for the assessing
authority to proceed with the reassessment
proceedings in accordance with law,
without being influenced by any of the
observations made in the body of this
judgment
----------
(2022)05ILR A894
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.05.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ Tax No. 902 of 2021

M/S Brij Bihari Singh ...Petitioner
Versus
Commissioner Commercial Tax, Lko & Anr.
 ...Respondents

Counsel for the Petitioner:
Ms. Pooja Talwar

Counsel for the Respondents:
C.S.C.

A. Tax Law - Period of limitation - U.P.
G.S.T. Act, 2017 - Section 107 - U.P. G.S.T.
Rules, 2017 - Rue 108 - The statutory
right of appeal is not an illusory remedy
given to the assessee or a person
aggrieved. The appeal forum must be seen
to exist and be freely available to the
person seeing to approach it without any
obstruction. (Para 11)
B. In the present case, the petitioner was
disabled from filling appeal (electronically)
through the prescribed mode against the
order
dated
28.02.2019
for
reasons
attributable to the GSTN authority and not for
reasons attributable to the petitioner. The
technical glitches were resolved by the GSTN
authority on 17.09.2021, the period of
limitation to file an appeal started running
from that date only. The period starting from
28.02.02019 to 17.09.2021 shall remain
suspended. (Para 10, 12 and 13) (E-10)
(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1 . Heard Ms. Pooja Talwar, learned
counsel for the assessee and learned
Standing Counsel for the revenue.

2. Challenge has been raised to the
order
passed
by
the
Additional
Commissioner,
Grade-2
(Appeal),
Commercial
Tax,
Sonbhadra
dated
12.10.2021 in Appeal No. GST - 47 of
2021 for the period 2019-20. By that order,
that Appeal Authority has rejected as time
barred the appeal filed by the petitioner
against the order dated 28.02.2019, passed
by the Proper Officer, cancelling the
petitioner's registration, under Section 29 of
the U.P. GST Act, 2017 (hereinafter
referred to as the Act).

3. Having heard learned counsel for
the parties and having perused the record, it
transpires, the petitioner's registration under
the Act was sought to be cancelled vide
notice dated 28.02.2019. The petitioner
submitted his reply thereto on 12.03.2019.
However, in absence of the petitioner, the
said registration was cancelled by an ex
parte order dated 09.08.2019. Here, it is not
in dispute that the petitioner was served
with a copy of that order at the relevant
time through the GSTN portal.