C. PRAVEEN KUMAR, J.

1. Assailing the Order made under Clause (d) of Section 148A of Income Tax Act, 1961 [‘the Act’], wherein the Authority on coming to the conclusion that, income chargeable to tax, which is in the form of an asset, is likely to amount to Rs.50,00,000/- or more, which escaped the assessment, leading to issuance of notice under Section 148 of the Act, the present Writ Petition is filed.

2. The facts, in issue, are as under:

i. The Petitioner herein is involved in business of Fish farming. Basing on the information received under the category of ‘NMS Module of insight portal’ and as no declaration was filed for the assessment year 2015-2016, the Petitioner’s case was taken up by the first Respondent under Section 148A(a) of the Act.

ii. A Notice came to be issued under Section 148A(b) of the Act, on 20.03.2022 i.e., before the end of the period of six [06] years from the end of the relevant assessment year, to which the Petitioner is said to have submitted an explanation under Section 148A(c) of the Act, on 21.03.2022. Taking into consideration the explanation submitted by the Petitioner, the Authorities felt that it is a fit case for issuance of notice under Section 148 of the Act, for the assessment year 2015-2016. This Order is sought to be challenged in the present Writ Petition, on various grounds.

3. (i) The learned Counsel for the Petitioner mainly submits that, the primary condition under Section 149 of the Act, to issue a notice is not satisfied, as the Assessing Officer was not in possession of books of account or other documents to find out the income chargeable to tax, escaped the assessment amounts or that the amount is likely to cross Rs.50,00,000/-.

(ii) It is further stated that, as per Section 148A(b) and (d) of the Act, the expression “shall verify” mandates proper verification by the Assessing Officer of the information collected through sources, such as Central Information Branch [‘CIB’] and Annual Information Return [‘AIR’], and that the Revenue should not treat verification procedure as an empty formality, more so, having regard to the instructions issued by CBDT, dated 22.08.2022.

(iii) The Counsel also submits that, when the Petitioner has raised objection under Section 148A(c) of the Act, in his reply, dated 21.03.2022, it is the duty of the first Respondent to properly verify the same and even the second Respondent cannot mechanically grant approval. In-fact, it is stated that, instructions were given by CBDT, directing their Officers to consider the Assessee’s reply objectively before adjudicating the same. The learned Counsel would contend that, none of these procedural aspects were dealt with by the Authority while dealing with the same.

(iv) Even on merits, the learned Counsel would contend that, the information received by the Department under two heads i.e., AIR and CIB show that the Petitioner has deposited Rs.25,00,000/- and Rs.26,00,000/- respectively, into the same bank account, which is Andhra Bank, is far from truth and without any basis. According to him, the amount under AIR takes within its fold the amount covered under the head CIB. In other words, his plea appears to be that the same amount is shown twice under two different heads vide two different annual returns, which escalated the amount carrying to Rs.51,00,000/-. In-fact, the Authorities ought to have given an opportunity to explain this contingency before passing the impugned order. It is stated that along with the explanation, the Petitioner filed the bank accounts showing that he has deposited only Rs.26,00,000/- into his bank account and that he has only one bank account in Andhra Bank at Kaikaluru. According to him, things would have been different if the AIR disclosed the bank account number, which would have enabled the Petitioner to explain the same.

(v) The notice given also does not indicate the Branch of the Andhra Bank, where the Petitioner is alleged to have deposited Rs.26,00,000/-, and since no account number is given, he pleads that the argument of the Petitioner cannot be found fault with, at this stage.

(vi) The learned Counsel took us through the provisions of the Act, to show that the Order under challenge is illegal and that the Petitioner cannot be forced to undergo further process, though, the counter filed by the Respondent would show that, the Petitioner would be having number of more opportunities to explain his stand.

4. On the other hand, Ms. M. Kiranmayee, learned Standing Counsel appearing for Respondents, would contend that, since the proceedings are not concluded and that the Petitioner would be getting more number of opportunities to explain his stand, it may not be proper to curtail further proceedings, at this stage. Since, the assessment is not yet made, no prejudice is caused if the Petitioner is put to filing of assessment for the assessment year 2015-2016, in which proceedings he can explain his stand.

5. The counter filed by the Department also states that the Court has to see whether any prima facie material is available, on the basis of which, the Department could reopen the case and that the sufficiency and the correctness of the material is not a thing to be considered, at this stage. Since, the procedure as contemplated under Sections 147 and 148 are not violated and that the notice under Section 148 is not a final proceeding, it is stated that, the Petitioner has not made out any case seeking interference by this Court.

6. The point that arises for consideration is, whether the Order passed under Clause (d) of Section 148A warrants interference

7. As seen from the record, a notice under Clause (d) of Section 148A of the Act was issued to the Petitioner basing on the information that the income chargeable to tax for the assessment year 2015-2016 has escaped assessment within the meaning of Section 147 of the Act. Hence, a notice was issued on 20.03.2022 calling upon the Petitioner to explain with supporting documents on or before 29.03.2022.

8. The notice issued under Clause (b) of Section 148A of the Act, also contains an annexure, which states that, “as per NMS module of insight portal for assessment year 2015-2016, it was noticed that the case of the Petitioner was identified as Non-filer with potential tax liabilities”. The annexure also indicate that, the source of information for CIB-410 is Andhra Bank, Kaikalur, wherein an amount of Rs.25,00,000/- was deposited in six transactions, while for AIR-001, the source of information was Andhra Bank, where more than Rs. 10,00,000/- was deposited under one account totalling to Rs.26,00,000/-. Adding both the transactions, the Petitioner was asked to show cause the deposit of Rs.51,00,000/-.

9. An explanation was submitted by the Petitioner on 21.03.2022 enclosing the statement of Andhra Bank, Kaikaluru Branch, which shows that the Petitioner is having only one savings bank account in Andhra Bank, Kaikaluru Branch, and the amount of cash deposits for the year is about Rs.26,00,000/-. In the explanation, the Petitioner denied depositing cash of Rs.10,00,000/- or more in a savings bank account. It was further stated that, the Petitioner never had another bank account in Andhra Bank, Kaikaluru Branch or any other bank except State Bank of Hyderabad at Kaikaluru Branch.

10. Section 148A(b) and (d) of the Act, specifically contemplate that the expression “shall verify” should carry some meaning, namely, that the information collected through source such as CIB and AIR should be verified by the authority before issuing of notice under Clause (b) of Section 148 of the Act. Further, when a objection is raised by the Petitioner under Clause (c) of Section 14A of the Act, it was the duty of the Respondent to at-least verify the error committed by them in not disclosing the branch of the bank where an amount of Rs. 26,00,000/- have been deposited, more so, when the case of the Petitioner is that he is having only one account in Andhra Bank at Kaikaluru. Therefore, the argument of the learned Counsel for the Petitioner that the bank has reported the same transactions twice under two different heads through two different AIR, cannot be brushed aside, at this stage, more so, when the statement of account of Andhra Bank, Kaikaluru, was enclosed along with the notice.

11. It may be true that, the Petitioner would be having number of opportunities to explain his stand in the proceedings to be initiated under Section 148 of the Act, i.e., after filing of the assessment, but the argument of the learned Counsel for the Petitioner that the Petitioner could not be put to such a ordeal, at this stage, more so, when the Order came to be passed without verifying the records, cannot also be brushed aside.

12. As stated earlier, a perusal of the explanation and the material would show that the Petitioner is only having one bank account in Andhra Branch at Kaikaluru Branch. To prove that, he had an another account at Kaikaluru Branch, in which he has deposited Rs.26,00,000/-, is practically impossible for him to prove. A negative fact cannot be proved. On the other hand, if there is material to show that the Petitioner had another bank account, it would be useful for the Respondent to verify the same and place material in support of it. Apart from that, the AIR does not mention the bank account number or the branch of the Andhra Bank in the show cause notice. In such an event, it would be difficult for the Petitioner to explain the deposit of Rs.26,00,000/-.

13. As stated earlier, it is practically impossible to explain a fact, which according to the Petitioner is not in existence. Had any information was given to the Petitioner about the existence of another bank account either in Kaikaluru Branch or any other branch of Andhra Bank [Union Bank] with the account number, it can be said that the Petitioner was given an opportunity to explain a fact, which is against him and which could be made the basis to issue notice under Section 148. This issue is fortified by the fact that, in respect of information furnished under CIB, the Petitioner was able to explain the deposits made in the assessment year 2015-16, which tallied with the figures mentioned in the notice.

14. Having regard to the above and the judgment of the Hon’ble Supreme Court relied upon, the Order under challenge is set-aside and the matter is remanded back to the first Respondent with a direction that a fresh notice be given, disclosing the details of the second bank account if any with Andhra Bank or in any branch of Andhra Bank, where cash deposits are made within a period of one week or 10 days from the date of receipt of the Order, fixing a time limit for reply and, thereafter, proceed further in accordance with law. It is needless to mention that an opportunity of hearing be given, if requested.

15. With the above direction, the Writ Petition is disposed of. No order as to costs.

16. As a sequel, interlocutory applications, if any, pending shall stand closed.