Calcutta High Court (Appellete Side)
Ct No. 2 vs P.M. Income Tax Officer on 12 May, 2023
Author: Md. Nizamuddin
Bench: Md. Nizamuddin
WPA 8051 OF 2023
12.05.2023 Shipra Day
Sl no. 15
Ct no. 2 - Vs -
P.M. Income Tax Officer, Ward 32 (1), Kolkata & Ors.
Mr. Avra Mazumder,
Mr. Suman Bhowmik,
Mr. Samrat Das
... for the petitioner
Mr. Prithu Dudhoria
... for the respondents
Heard learned advocates appearing for the parties.
By this writ petition petitioner has challenged the impugned order dated 16th April, 2022, under Section 148A(d) of the Income Tax Act, 1961 relating to assessment year 2015-2016 on the ground of inherent lack of jurisdiction of reopening of the assessment of relevant year after assessee petitioner has availed the benefit of "Income Declaration Scheme", 2016 and it is the case of the petitioner that once the undisclosed income of a particular year is disclosed and his declaration is accepted and he pays the tax, the very same undisclosed income cannot be a ground for reopening of assessment in view of Section 188 of the aforesaid scheme, 2016. 2 In support of his contention petitioner relies on a reported decision of this Court in the case of Principal Commissioner of Income Tax - Vs - Manju Osatwal reported in (2022) 139 Taxmann.com 376 Calcutta and particularly paragraph 17 and 18 of the said judgement which is quoted as hereunder : -
"17. After going through the provisions of the scheme, this Court finds that Chapter IX of the Finance Act, 2016 is a complete code by itself. It provides an opportunity to an assessee to offer income, which was not disclosed earlier, to tax. Chapter IX provides for a special procedure for disclosure and charging income to tax. It lays down the procedure for disclosure of such income; the rate of income tax and the penalty to be levied thereupon and the manner of making such payment. Under the said scheme the competent authority has been vested with the power to accept the declaration made by the assessee and such power to be exercised only upon being satisfied with such disclosure. It is also open to such authority not to accept such declaration. But once accepted, the same attains finality. The scheme does not empower and/or authorize the competent authority to reopen and/or revise a decision taken on such declaration. It is well settled that a statutory 3 authority has to function within the limits of the jurisdiction vested with him under the statute. Thus, once the declaration is accepted by the PCIT such authority is estopped from taking any steps which would in effect amount to reopening and/or revising the decision already taken on such declaration. The said scheme was introduced in order to encourage an assessee to make a disclosure of the income not disclosed earlier. PCIT in the instant case invoked its power under Section 263 in respect of an item of income which was declared in terms of the said scheme. All particulars were available before the PCIT in respect of such income and the PCIT upon being satisfied, accepted such declaration. Thus, if the contention of the revenue is accepted that the PCIT has power to invoke Section 263 of the I.T. Act, the same, in our considered view, would frustrate the object behind introduction of such Scheme. The PCIT was not justified in invoking the power under Section 263 of the I.T. Act as it would amount to revising a decision taken by the PCIT on such declaration by the assessing officer which is not contemplated under the Income Tax Act.
18. Thus, all materials were available before the PCIT when the declaration made under Section 183 of 4 the Finance Act were considered and accepted. Therefore, the assumption of jurisdiction by the PCIT under Section 263 of the Act is wholly without jurisdiction."
Considering the facts and circumstances of this case and in view of the aforesaid judgement of the Division Bench of this Court and interpretation of Section 188 of the aforesaid Scheme, I am of the considered view that the issues require final adjudication upon affidavits to be filed by the respondents and this writ petition cannot be thrown at motion state.
I am also of the view that the petitioner has been able to make out a prima facie case for an interim order in the matter.
Let the respondents file affidavit-in-opposition within two weeks after summer vacation, petitioner to file reply thereto, if any, within two weeks thereafter.
List this matter for final hearing in the monthly list of August, 2023.
At the time of hearing, parties should be ready with the short written notes of arguments.
There shall be interim order of stay of all further proceedings on the basis of the aforesaid 5 impugned order dated 16th April, 2022, under Section 148A(d) of the Act till 31st August, 2023 or until further order whichever is earlier.
(Md. Nizamuddin, J.)