2024 (8) TMI 976

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....ce dated 17 April 2024 ("impugned notice") issued to the Petitioner under Section 148 of the Income Tax Act, 1961 ("the Act"), and also the underlying prior notice and order under Section 148A (b) and Section 148A (d) of the Act, respectively. The reassessment under Section 148 of the Act has been initiated in respect of returns filed by the Petitioner-Assessee for the Assessment Year 2020-21. 3. On perusal of the record, it is apparent that the impugned notice dated 29 March, 2024 issued under Section 148A(b), the order passed thereon under Section 148A (d) dated 17 April 2024 and the consequent notice dated 17 April 2024 issued under Section 148 of the Act are all issued by the Jurisdictional Assessing Officer ("JAO") and not by a Face....

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.... issued by the FAO, it would be open to an assessee to make submission before the JAO and vice versa, which is clearly not contemplated in the Act. Therefore, there is no question of concurrent jurisdiction of both FAO or the JAO with respect to the issuance of notice under Section 148 of the Act. The Scheme dated 29th March 2022 in paragraph 3 clearly provides that the issuance of notice "shall be through automated allocation" which means that the same is mandatory and is required to be followed by the Department and does not give any discretion to the Department to choose whether to follow it or not. That automated allocation is defined in paragraph 2(b) of the Scheme to mean an algorithm for randomised allocation of cases by using suitab....

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.... Act and accordingly, it is only the FAO which can issue the notice under Section 148 of the Act and not the JAO. The argument advanced by respondent would render clause 3(b) of the Scheme otiose and to be ignored or contravened, as according to respondent, even though the Scheme specifically provides for issuance of notice under Section 148 of the Act in a faceless manner, no notice is required to be issued under Section 148 of the Act in a faceless manner. In such a situation, not only clause 3(b) but also the first two lines below clause 3(b) would be otiose, as it deals with the aspect of issuance of notice under Section 148 of the Act. Respondents, being an authority subordinate to the CBDT, cannot argue that the Scheme framed by the C....

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....the proceedings have been initiated, vitiates the proceedings. 6. Learned Counsel for both the parties agree that the proceedings initiated under Section 148 of the Act would not be sustainable in view of the judgment rendered in Hexaware. Learned Counsel for the Petitioner-Assessee has also drawn our attention to a recent decision of this Court in Nainraj Enterprises Pvt. Ltd. Vs. The Deputy Commissioner of Income Tax, Circle-4(3)(1), Mumbai & Ors. Writ Petition (L.) No. 16918 of 2024 dt. 2-07-2024, whereby in similar circumstances, this Court has allowed the petition considering the provisions of Section 151A of the Act. 7. In the light of the above discussion, and as there is no dispute that the JAO had no jurisdiction to issue the....

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....be any other view except to allow the petition being squarely covered by the decisions of this Court in Hexaware (supra) and Kairos Properties Pvt. Ltd. Vs. Assistant Commissioner of Incometax, circle-15(1)(2), Mumbai & Ors. Writ Petition (L) No. 22686 of 2024 dated 05 August 2024. 10. The Learned counsel for the petitioner has also contended that the notice under Section 148 as impugned which is also required to be held to be illegal inasmuch as it does not satisfy the requirement of a three months notice as incorporated in Section 148 vide Finance Act, 2023 w.e.f. 1 April 2023. His contention is that the order under Section 148A (d) of the Act was passed on 24 April 2023 which is on a day after the amendments to Section 148 as effected....

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....ction 148A, the Assessing Officer shall serve on the assessee a notice, along with a copy of the order passed, if required, under clause (d) of section 148A, requiring him to furnish within [a period of three months from the end of the month in which such notice is issued, or such further period as may be allowed by the Assessing Officer on the basis of an application made in this regard by the assessee], a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall....