Reopening under section 148 & not under section 153C is bad in law if it is based on incriminating materials, documents, electronic data seized from a third party, or statements recorded during the investigation
Are the reasons supplied based on incriminating materials, documents, electronic data seized from a third party, or statements recorded during the investigation? If the answer is affirmative, this could indicate that the proceedings initiated under Section 147 are, in fact, bad in law. The correct provision would have been to invoke the provision of section 153C in such a case.
In short, the Learned Assessing Officer should have taken the appropriate route under Section 153C of the Act.
To support this viewpoint, several noteworthy judgments can be referenced:
1. Abhisar Buildwell P. Ltd. – Supreme Court (See Paras 11 and 23)
2. Shyam Sunder Khandelwal – Rajasthan High Court (D.B. Civil Writ Petition No. 18363/2019)
3. Ghanshyam Rasiklal Shah – Mumbai ITAT(ITA No. 4707/Mum/2024)
4. Aristocrat Residences LLP – Kolkata ITAT (ITA No. 1118/KOL/2024)
5. Sejal Jewellery & Anr. – Bombay High Court (Writ Petition No. 3057 of 2019)
The copy of the order is as under:
