TaxTMI 
TaxTMI 
2022 (6) TMI 91
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....ated 09.02.2022 and Notices dated 04.03.2022 under Section 142 (1) and under Section 144 of the Act for (A.Y.) 2016-17 of the National Faceless Assessment Centre (hereinafter referred as NFAC) for A.Y. 2016-17 for ex-parte assessment of writ petitioner. Factual Background:- 2. The petitioner has invoked the writ jurisdiction of this Court to quash and set aside the notice dated 27.03.2021 issued under Section 148 of the Act for A.Y. 2016-17 and further notice issued under Section 142(1) of the Act for A.Y. 2016-17 and the order dated 09.02.2022 disposing of objections of National Faceless Assessment Centre. The petitioner has also challenged the notice dated 04.03.2022 issued under Section 144 of NFAC for framing an ex-parte assessment of Writ petitioner for A.Y. 2016-17. The petitioner has submitted that the petitioner did not have any income, as defined under Section 4 and therefore was not obliged to file return under Section 139 (1). It has been further submitted that the Principle (CIT) (Delhi) had no jurisdiction over the address at Faridabad which is in the State of Haryana, on which notice under Section 148 was issued. 3. The petitioner has also challenged the noti....
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....hereof with interest at the rate of 12%. The department challenged this order before this Court by filing W.P.(C) No. 6768 of 2015. This Court directed release of the amount due to the petitioner. However, the respondents offered only half of the amount due. This Court vide order dated 12.10.2015, directed that in case amount offered was accepted by the petitioner that would be without prejudice to the rights and contentions of both the parties. The petitioner stated that the amount of Rs.53,21,021/-is a disputed amount and remains so during the pendency of the aforesaid W.P.(C) No.6768 of 2015. The petitioner accepted this amount as an "advance" that would have to be returned to the respondents by the petitioner in case this Court decides the case against the petitioner. Therefore, this amount cannot be assessed as "income" and would remain as an Advance & is a liability in the hands of the petitioner. 8. The petitioner stated that the action of the respondent Nos. 4 and 5 are motivated on account of various litigations pending before Special Judge, CBI, Ghaziabad, High Court of Allahabad and Supreme Court. 9. The petitioner has stated that notice under Section 144 of the Ac....
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....d that at the relevant time i.e. 27.03.2021, he was not posted at Faridabad and thus had no concern with the address given in the notice under Section 148 of the Act. The petitioner further stated that he had given an application for change of address and on his application, the address on the PAN Card must have been changed. 14. The petitioner also invited our attention to the communication dated 10.02.2022. He stated that as per this document, his objections were dismissed vide order dated 09.02.2022. It is stated that forgery has been committed by the department as an order cannot be of two dates i.e. of 09.02.2022 and 10.02.2022. The attention was also invited to Para- 5 of the said order whereby the date of the notice under Section 148 has been written as 27.01.2021 and stated that in fact this entire order is a forged and fabricated document. The petitioner also stated that in the assessment order dated 25.03.2022, it has falsely been stated that notice under Section 148 of the Act issued on 27.03.2021 was duly served upon him through Speed Post ED525117940IN dated 31.03.2022. The petitioner stated that he had received the information through RTI that no such consignment d....
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.... WRIT TAX No. 78/2022 * Ghaziabad vs Globus Construction Pvt. Ltd. ITA No. 1185/Del./2020 * CIT, Shimla vs. M/s Green World Corporation, (2009) 314 ITR 81 * Commissioner of Income Tax & Others. vs Chhabil Das Agarwal (2014) 1 SCC 603 * Assistant Commissioner of Income Tax & Another vs M/S Hotel Blue Moon (2011) 32, ITR 362 SC * SK Srivastava, IRS vs Union of India and Others; WP (C) NO 6691/2014 * Income Tax Officer, Ward 2(3), Noida vs Neeraj Goel, ITA NO 6290/Del/2017 * Income Tax Officer, Ward 2(3), Noida vs Neeraj Goel, ITA NO 6290/Del/2017 * SK Srivastava, IRS vs Union of India & Others. O.A No.2094/2014 * Union of India &Ors. vs SK Srivastava & Ors. WP(C) 6768/2015 * Union of India &Ors. vs SK Srivastava &Ors. WP(C) 6768/2015 17. The petitioner stated that in Tata Capital Finance Services (supra), the High Court of Bombay inter alia held that the personal hearing shall be given and minimum seven working days advance notice of such personal hearing be granted. The petitioner stated that the A.O. has not followed the judicial dictum and failed to afford personal hearing to the petitione....
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....ner has further relied upon Dauji Aabhushan Bhandar (Supra) wherein, it was inter-alia held that the point of time when a digitally signed notice in the form of electronic record is entered into computer resources outside the control of the originator i.e., the Assessing Authority that shall be the date and time of issuance of notice under Section 148 with read with Section 149 of the Act. The petitioner stated that in the present case, there is no material on the record showing that the notice after having been digitally signed entered into computer resources outside the control of the originator i.e., the Assessing Authority on or before 31.03.2021. 22. The petitioner has further relied upon Commission of Income Tax v. Chhabildass Aggarwal (supra). The petitioner stated that the Hon'ble Supreme Court in this case has held that a writ may not be entertained if the remedy provided under the Statute is substantial and not a mere formality. The petitioner stated that in the present set of facts the remedy provided under the statute is a mere formality. 23. The petitioner has further relied upon Assistant Commissioner of Tax & Anr. v. Hotel Blue Moon, (Supra) whereby the Supreme....
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....ferencing. It was stated that the petitioner can file an appeal if he is aggrieved by the assessment order. Sh. Rai invited our attention to the notification dated 31.03.2021, issued by the Director, Central Board of Direct Taxes. In the said notification in exercise of powers conferred by sub Sections (1), (2) and (5) of Section 120 of the Act, the income tax authorities of NAFAC mentioned in the notification were authorized to exercise the powers and functions of the A.O. to facilitate the conduct of the faceless assessment proceedings under Section 144 B of the said act. 29. Mr. Rai further submitted that the contention of the petitioner that the A.O. lacks the territorial jurisdiction in issuing the notice under Section 148 of the Income Tax Act is completely baseless. The Petitioner has been filing his ITR before the same J.A.O. i.e Circle 67(1) who has issued the Notice under Section 148 dated 27.03.2021 to the petitioner. That the petitioner has filed his ITR for A.Y. 202021 also under Delhi Jurisdiction, Circle 67(1) and it is admitted position by the petitioner that his PAN is also at Circle 67(1), Delhi. 30. Mr. Rai submitted that no prejudice is caused to the petit....
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....a) Section 120 of the Act specifies the Jurisdiction of the Income Tax Authorities. b) Section 143(3A) of the Act empowering the Government to make an Assessment scheme and notify the same in the Official Gazette. c) Section 143(3B) of the Act for giving effect to the scheme made u/s 143(3A). d) Section 144B of the Act specifies the complete procedure of Faceless Assessment wherein sub section (3) empowers the Board to set up Centres and units, namely National Faceless Assessment Centre, Regional Faceless Assessment Centre, Assessment Units, Verification units, technical units and review units. Sub section (4) specifies that the Assessment unit, verification unit, technical unit and review unit shall have the Income Tax Authorities. Therefore, the submission of the Petitioner that NAFAC is not an Income Tax Authority is without any merit as the Income Tax Authorities as defined u/s 116 of the Act are part of the Units as defined u/s 144B(4), hence the functions of assessment are performed by an Income Tax Authority. 34. Sh. Rai stated that the allegations of the petitioner that the personal hearing was not granted is also denied as the Assessment order....
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....t the alleged notice dated 27.03.2021 issued under Section 148 of the Act has not been signed. Our attention is also invited to Instructions No. 8/2017 issued by the department of CBDT dated 29.09.2017 whereby in Rule 5.2, it has been provided that all department orders/communications/notices being issued to the assessee through the "e-proceeding facility" are to be signed digitally by the assessee. The petitioner has reiterated that the notice under Section 148 of the Act and all subsequent actions taken by the revenue are liable to be quashed. Analysis & Findings 39. We have considered the submission and perused the record. This Court is of the view that the A.O. has exercised his jurisdiction in accordance with the law and therefore there is no ground to set aside the same. 40. In order to render a finding on the plea raised by the petitioner it is necessary to understand the Faceless Assessment's Scheme. The Central Government in the Union Budget in 2019 introduced the scheme of faceless assessment. The objective of the Scheme was to eliminate the human interface between the taxpayers and the Income Tax Department. The Scheme merely lays down the procedure, to carry ou....
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....law and other parameters as provided under the law for the purpose of assessment remains the same. In order to keep pace with dynamics of the changed environment, we have to march step by step towards making the systems efficient and transparent. 44. Vide notification dated 12.09.2019 the Central Government in exercise of the powers conferred by Sub-Sections (3A & 3B) of Section 143 of the Act, 1961(43 of 1961) issued the E-Assessment Cheme. The notification provided that the provisions of Clause (7A) of Section 2, Section 92CA, Section 120, Section 124, Section 127, Section 129, Section 131, Section 133, Section 133A, Section 133C, Section 134, Section 142, Section 142A, Section 143, Section 144 A, Section 144 BA, Section144 C and chapter XXI of the Act shall apply to the assessments made in accordance with the Scheme subject to certain exceptions, modifications and adaptation as provided in the notification. By way of notification dated 30.08.2020 the word "E-Assessment" is substituted by "Faceless Assessment". The notification dated 31.03.2021, authorizes the Principal Commissioner of Income Tax, Principal Commissioner of Income Tax (Verification Unit), Additional Commissione....
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....rograde step. This court thinks that there is no illegality in the National Faceless Assessment Scheme as provided in the statute under Section 144B. The disposal of the objections and framing of the assessment has actually been done by the Assessing Officer. The only difference is that unlike earlier, the orders have been conveyed by NAFAC instead of A.O. directly. 49. We consider that the contention raised by the petitioner that National Faceless Assessment Centre as provided under Section 144B has no authority to frame the assessment is without any basis. 50. Before embarking upon other issues raised by the petitioner, it is necessary to examine the jurisdiction of the writ Court under Article 226 of the Constitution of India. Exercise of jurisdiction by High Court under Article 226 of Constitution of India is discretionary and not obligatory without being exhaustive. When a statutory forum is created by law for redressal of grievances, a Writ Petition should not be entertained ignoring the statutory dispensation. The Income Tax Act, 1961 provides complete machinery for the assessment/ reassessment of tax, imposition of penalty and for obtaining relief with respect to an i....
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....is rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and vi. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 53. We consider that in the writ jurisdiction this Court cannot enter into the arena of examination of factual-matrix. The Court can interfere in the writ jurisdiction only if there is a violation of principle of natural justice or the action of the respondent is ex-facie illegal and suffers from perversity. 54. Section 149 (1) provides the time period for issuance of notice under Section 148 of the Act. The inter play of Section 148 and Section 149 has come up for discussion before Hon'ble Supreme Court in R.K. Upadhaya vs. Shanabhai P. Patel 1987 166 ITR 163 (SC). In this case, it was inter alia held as under; "The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different. What used to be contained in s. 34 of the 1922 Act....
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....present case is dated 27.03.2021. The notice has also been digitally signed on the same day. Thus, the contention of the petitioner that the notice under Section 148 is beyond limitation does not hold any force and is rejected. 59. The address at which notice was sent by the Revenue is, one of the addresses mentioned by the petitioner on his portal as per Section 282 of the Act read with Rule 127 of the Income Tax Rules. Further, the notice under Section 148 was uploaded on the E-filing portal of the petitioner on 27.03.2021.The petitioner has himself chosen the communication address to be of Faridabad, Haryana which is clearly reflected in the document of PAN jurisdiction details of the petitioner. 60. The petitioner has also raised a plea that notice under Section 148 was never served upon him. The plea of petitioner is that the notice has not been sent at his address, rather the petitioner went to the extent of saying that the notice might have been sent to some other person of his name and may not even belong to him. It is a matter of record that the address at which the notice was sent was mentioned in the PAN details of the petitioner. In this regard, it is necessary to....