MANU/TN/4375/2021

True Court CopyTM

IN THE HIGH COURT OF MADRAS

W.P. No. 33803 of 2018 and W.M.P. No. 39259 of 2018

Assessment Year: 2010-2011

Decided On: 28.06.2021

Appellants: Rajmannar Ramaswamy
Vs.
Respondent: Income Tax Officer, Ward-1(3) and Ors.

Hon'ble Judges/Coram:
S.M. Subramaniam

ORDER

S.M. Subramaniam, J.

1. The notice issued under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') in proceeding dated 31.03.2017 as well as the impugned letter issued by the 2nd respondent on 06.12.2018 are sought to be quashed in the present Writ Petition.

2. The petitioner states that he is not an Assessee on the file of the Income Tax Officer, Ward No. 1(3), Tirupur, India, and he has no taxable income in India, except, certain bank interest in which TDS has been duly deducted by the banks under Section 195 of the Act. The petitioner states that he had applied for a Permanent Account Number (hereinafter referred to as 'PAN'), showing his mother's address as No. 488, Mani Road, Kunnathur, Erode-638 103. The PAN was allotted in PAN No: AMUPR6293E. Since the petitioner is a Non-Resident Indian, he has not filed any Income Tax Returns for the last fifteen years and the said factors are known to the respondents-Income Tax Department also. Shockingly, the 1st respondent has issued a notice under Section 148 of the Act, dated 31.03.2017 and the said notice was booked at Tirupur Post-Office only on 04.04.2017 and the same was received at the native place of the writ petitioner, more specifically, by his brother, on 05.04.2017. The notice contemplates that the 1st respondent has "reason to believe" that there is escapement of income for the Assessment Year 2010-11. However, the notice under Section 148 of the Act, dated 31.03.2017, was sent to the native address of the petitioner in India and it was collected by his brother, with whom the petitioner has no cordial relationship.

3. The learned counsel for the petitioner made a submission that admittedly, the 1st respondent has no jurisdiction to issue notice under Section 148 of the Act. However, subsequent letter sent by the 2nd respondent in proceeding dated 06.12.2018 is also without jurisdiction, as Section 148 notice was not served on the writ petitioner, as contemplated under the provision. Section 148, in unambiguous terms, contemplates that the notice must be served to the assessee. However, no such notice was served to the petitioner in the present case. This apart, the last date for reopening of assessment falls on 31.03.2017. However, the notice cover was franked by the concerned Post-Office only on 04.04.2017 and therefore, the notice was issued beyond the period of limitation and on that ground also, the impugned orders are liable to be set aside. It is contended that the 1st respondent has no jurisdiction, as the petitioner is a resident of Belgium right from the year, 1991, and the respondents also have the knowledge about this fact and the petitioner, being a Non-Resident Indian, having no income in India, need not file any Return of Income. In respect of the bank deposits, the TDS are being recovered by the bankers and therefore, the very initiation is without jurisdiction, beyond the period of time limit contemplated and the transferring of proceeding to the 2nd respondent is also improper. For all these reasons, the impugned orders are liable to be set aside.

4. The learned Senior Standing Counsel appearing for the respondents disputed the said grounds by stating that the petitioner submitted his application for getting PAN by furnishing the address, wherein his mother resides. If at all there is any change of a........