TaxTMI 
TaxTMI 
2025 (4) TMI 1679
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....23929, 24404, 35817, 35818, 41930, 41931, 42530 and 42531 of 2024, 69,72, 76, 79 of 2025 Rajendracholapandian Ramani, M/s.Cherish Enterprises Private Limited, GE T&D India Limited, (Now GE Vernova T & D India Limited), Dadha Pharma LLP, Mr.Ganesamurthy Ravi, Mrs.Seema R Bora, Heptagon Technologies Private Limited, Sudharshan & Co., Mr.Panjamurthi Kirubhakaran, Mr.Panjamurthi Kirubhakaran, Paulraj Rangalakshmi, Selvaraj Savithri Versus Deputy Commissioner of Income Tax, Corporate Circle 3(1), Chennai; Chief Commissioner of Income Tax -1, Chennai; The Income Tax Officer, Corporate Circle 3(1), Chennai; The Principal Commissioner of Income Tax-3, Chennai; Deputy Commissioner of Income Tax, Corporate Circle, No.2, Madurai; Assessment Unit, Income Tax Department, New Delhi.; The Assessment Unit, National Faceless Assessment Centre, Income Tax Department, New Delhi.; The Income Tax Officer, Non-Corp, Ward 6(1), Chennai; The Additional / Joint/ Deputy/ Assistant Commissioner of Income Tax, Income Tax Officer, National Faceless Assessment Centre, Delhi.; The Assistant Commissioner of Income Tax, Non-Corporate Circle-12(1) Chennai; The Income Tax Officer, Ward 1(2), Tiruppur; Assistant C....
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....ng the present batch of writ petitions, I shall deal with the facts obtaining in W.P.No.21942 of 2024. 2.1. Petitioner is an individual engaged in the business of wholesale purchase and sale rice and paddy. For the assessment year 2015-16, petitioner had a turnover of Rs.4,87,44,145/-. Net profit was declared at Rs.6,49,848/-. Petitioner's business being primarily purchase and sale of rice and paddy with agriculturist, majority of transactions were cash transactions. 2.2. While so, petitioner was visited with a notice under Section 148A(b) of the Act dated 21.03.2022, issued by first respondent (JAO) to show cause as to why cash amounting to Rs.71,50,100/-, deposited by petitioner in his bank account during financial year 2015-16, should not be treated as escaped income within the meaning of section 147 of the Act. Petitioner filed his reply on 28.03.2022 interalia stating that the cash deposits where from sale of rice and paddy and submitted his bank details. 2.3. First respondent passed an order under Section 148A(d) of the Act and consequential notice under Section 148 of the Act came to be issued on 04.04.2022 whereby petitioner's objection was rejected on the ....
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....sue it may be necessary to first resolve the controversy as to whether the jurisdiction to conduct enquiry, issue notice, pass order under Section 148A of the Income Tax Act (hereinafter referred to as "the Act") and issuance of consequential notice under Section 148 of the Act, would lie with the Faceless Assessing Officer (hereinafter referred to as "FAO") or Jurisdictional Assessing Officer (hereinafter referred to as "JAO"). 3.Case of petitioners: 3.1. The following submissions were made on behalf of the petitioners by Mr.V.S.Jayakumar, Senior Advocate, Mr.A.S.Sriraman, Mr.R.Sivaraman, Mr.Venkat Narayanan, Mr.N.V.Balaji, Mr.Joseph Prabakar, Mr.M.VarunPandian, Mr.S.P.Chidambaram, Mr.Madhu and Mr.G.Ashokapathy. (a) That in terms of Section 151A of the Act read with the Scheme framed by the Central Government in exercise of its powers conferred thereon proceedings under Section 148A and notice under Section 148 of the Act, ought to be done in a faceless manner by FAO and not JAO with effect from 01.04.2021. (b) Impugned proceedings under Section 148A of the Act and consequential order under Section 148 of the Act having been made by JAO and not FAO, the ent....
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....e, would show the Scheme would cover proceedings under Section 148A of the Act. Section 151A of the Act dated 29.03.2022 covers Section 148A of the Act, the Scheme framed thereunder expressly provides for issuance of notice under Section 148 of the Act, automatically encompasses within its fold the procedure envisaged under Section 148A of the Act, though the scheme does not expressly cover Section 148 A of the Act. (i) That any dissection of the proceedings under Section 148A and Section 148 of the Act by treating them as distinct and independent of each other would result in defeating the purpose and object of introducing Faceless Mechanism in terms of Section 151A of the Act. (j) Reliance was placed on the following judgments in support of their contention that reassessment proceedings commencing with proceedings under Section 148A of the Act and culminating in reassessment under Section 147 of the Act ought to be faceless:- (1) Kankanala Ravindra Reddy vs. Income-tax Officer reported in 2023 SCC Online TS 4476. (2) Hexaware Technologies Ltd., vs. Assistant Commissioner of Income-tax reported in (2024) 464 ITR 430. (3) Jatinder Singh ....
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....nsequently, notices issued under Section 148 of the Act by the JAO is valid in law. (d) Central Government framed E-Assessment of Income Escaping Assessment Scheme, 2022, under Section 151A of the Act, vide notification No. S.O. 1466[E] dated 29.3.2022. The scheme only provides for making reassessment through Section 144B of the Act but has not made any workable scheme for processing the case for reopening under Section 148A of the Act and issuance of notice under Section 148 of the Act. (e) That reference to issuance of notice under Section 148 of the Act in the Scheme, is a policy statement of the Government and no scheme is brought out in the notification for processing the case for reopening under Section 148A of the Act and issue of notice under Section 148 of the Act. Section 144B of the Act also does not grant/vests any power with NaFAC in relation to proceedings under Section 148A of the Act. (f) By comparing the provisions of Section 144B(1) of the Act before and after the amendment, it was submitted that before amendment NaFAC is vested with power to carry out assessment proceedings from the stage after the issue of notice under Section 143(2) o....
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....ct also does not deal with processing the case for reopening the case under Section148A of the Act or issue of notice under Section148 of the Act. (j) Reliance was placed on Section 147 of the Act to submit that on a reading of Sections 147, 148 and 144B of the Act, it can be seen that the reassessment procedure under Section 147 of the Act will be commenced by NaFAC by issuing notice under Section 143(2) of the Act, if the return is filed in response to notice under Section 148 of the Act or by issuing notice under Section 142(1) of the Act, if return is not filed in response to notice under Section 148 of the Act. From this, it is very clear that the processing of the case under Section 148A of the Act and issuance of notice under Section 148 of the Act cannot be done by the Faceless Assessment Centre or the Assessment Units. 5. Discussion and Analysis: 5.1. Legislative/Judicial History on modes of assessment under the Income Tax Act: 5.1.1. It may be necessary to refer to legislative and judicial history relating to reassessment in particular the provisions as it existed prior to 01.04.2021 and the amendments introduced vide Finance Act, 2021, with regard to pr....
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....nt" the words "Faceless Assessment" stood substituted, introducing faceless jurisdiction for framing assessments for the first time. 5.1.6. Section 151A of the Act was introduced on 01.11.2020 by Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, for the purpose of introducing Faceless Assessment for Income Escaping Assessment. 5.1.7. Section 144B of the Act was introduced with effect from 01.04.2021 by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, for the purpose of conduct of Faceless Assessment. 5.1.8. Section 148A of the Act was introduced with effect from 01.04.2021 vide Finance Act, 2021, whereby as stated supra, the procedure laid down by the Supreme Court for re-assessment in GKN Driveshafts was legislatively recognised and incorporated. 5.1.9. Importantly, amendments was correspondingly made to Section 151A of the Act by inserting/adding the expressions "or conduting of enquiries or issuance of show cause notice or passing of order under Section 148A of the Act", thereby bringing Section 148A of the Act and the procedure covered therein within the ambit of faceless assessment in te....
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.... of Mark Studios (supra) and the decision of Bombay High Court in Hexaware Technologies (supra) was considered by the Division Bench of Rajasthan High Court in the case of Sharda Devi Chhajer v. The Income Tax Officer & Another in D.B. Civil Writ Petition No.11787 of 2024 and has followed the decision of Bombay High Court. The relevant portion is extracted hereunder: "8. The judgments which were rendered in the case of Hexaware Technologies Ltd. (supra) provides ample light as to how the applicability of the Scheme has to be made in strict sense, and the concurrent jurisdictions have to be avoided so as to ensure a smooth travel of the revenue assessments. The liberal interpretation made by the Hon'ble Delhi High Court in T.K.S. Builders Private Ltd. (supra) and the Hon'ble Madras High Court in Mark Studio India Private Limited (supra) have to be scrutinized in light of the settled legal position that the Tax Statutes have to be strictly interpreted." 5.2.2. I shall firstly refer to the cases wherein it was found that proceedings under Section 148A and notice under Section 148 must be carried out in a faceless manner. The following judgments are relevant and relevant po....
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....otice under section 148 of the unamended Act were set aside by the High Courts, the Hon'ble Supreme Court has only permitted the Union of India to proceed further with the reassessment proceedings under the amended provision of law, more particularly, as amended by the Finance Act, 2021. It never intended the authorities concerned to continue with the proceedings from the stage of the issuance of notices under section 148, nor is the directions to that effect. And there cannot be any confusion, ambiguity or misconception for the respondent-Department to have in this regard." (b) High Court of Bombay in the case of Hexaware Technologies Ltd., vs. Assistant Commissioner of Income-tax, reported in (2024) 464 ITR 430: "35. Further, in our view, there is no question of concurrent jurisdiction of the JAO and the FAO for issuance of notice under section 148 of the Act or even for passing assessment or reassessment order. When specific jurisdiction has been assigned to either the JAO or the FAO in the Scheme dated 29th March, 2022, then it is to the exclusion of the other. To take any other view in the matter, would not only result in chaos but also render the whole f....
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....h 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 CBDT, and which has been laid before both House of Parliament is partly otiose and inapplicable. The argument advanced by respondent expressly makes clause 3(b) otiose and impliedly makes the whole Scheme otiose. If clause 3(b) of the Scheme is not applicable, then only clause 3(a) of the Scheme remains. What is covered in clause 3(a) of the Scheme is already provided in Section 144B(1) of the Act, which Section provides for faceless assessment, and covers assessment, reassessment or recompu....
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....ss assessment would be defeated if show cause notice under Section 148 is issued by Jurisdictional Assessing Officer. The respondents are heavily placing reliance upon office memorandum and letter issued by departmental authorities. It is axiomatic intax jurisprudence that circulars, instructions and letters issued by Board or any other authority cannot override statutory provisions. The circulars are binding upon authorities and Courts are not bound by circulars. The mandate of Section 144B, 151A read with notification dated 29.03.2022 issued thereunder is quite lucid. There is no ambiguity in the language of statutory provisions, thus, office memorandum or any other instruction issued by Board or any other authority cannot be relied upon. Instructions/circulars can supplement but cannot supplant statutory provisions." (d) High Court of Telangana in the case of Sri Venkataramana Reddy Patloola vs. Deputy Commissioner of Income Tax, Circle 1(1), Hyderabad and Others, reported in (2024) 468 ITR 181: "24. Thus, there is no cavil of doubt that Section 144B of the Act and order of CBDT dated 06.09.2021 give exemption from following the mandatory faceless procedure onl....
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.... of Section 148A from the scope of the Scheme in paragraph 3 of the notification dated 29 th March, 2022, it would hence be not be possible to accept the Revenue's contention that the provision of Section 148A stands excluded from the applicability of the faceless mechanism. 16. For the aforesaid reasons, we would not accept Mr. Mohanty's submission that the scope of the Scheme would exclude the applicability of Section 148A and if steps are taken by the JAO under Section 148A culminating into issuance of a notice under Section 148 of the Act, the entire exercise being undertaken outside the faceless mechanism would be required to be quashed and set aside. There cannot be any other reading of these provisions along with the notification." (f) Rajasthan High Court in the case of Sharda Devi Chhajer v. The Income Tax Officer & Another in D.B. Civil Writ Petition No.11787 of 2024: "8. The judgments which were rendered in the case of Hexaware Technologies Ltd. (supra) provides ample light as to how the applicability of the Scheme has to be made in strict sense, and the concurrent jurisdictions have to be avoided so as to ensure a smooth travel of the ....
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....iced in the preceding parts of this decision, the RMS and the Insight Portal pushes information to the JAO and is principally not concerned with faceless assessment at all. The RMS essentially enables the JAO to firstly examine the veracity of disclosures made and examine the return against various parameters and information which has been collated by the Directorate of Systems. It thus provides the JAO with an insight in respect of various transactions to which the assessee may be connected as well as data pertaining to that assessee which has otherwise been aggregated and mapped on the basis of material existing on the system of the respondents. The respondents would, therefore, appear to be correct in their submission that when material comes to be placed in the hands of the JAO by the RMS, it would consequently be entitled to initiate the process of reassessment by following the procedure prescribed under Section 148A. If after consideration of the objections that are preferred, it stands firm in its opinion that income was likely to have escaped assessment, it would transmit the relevant record to the NFAC. It is at that stage and on receipt of the said material by NFAC that t....
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....ssing Officer, who had thereafter sent the Section 148 notice to the registered e~mail account of the Assessee from the ITBA Portal, in faceless manner. Thus, the issuance of the impugned notice was duly in accordance with the Scheme, except the procedural lapse of mentioning the name of the JAO. vi) The said procedural errors will not vitiate the initiation of the proceedings for issuance of notice under Section 148 of the IT Act since such errors are curable in nature. vii) In terms of the provisions of Section 151A of the IT Act, still the JAOs shall have to obtain prior approval from the higher authority for issuance of Section 148 notice under the Scheme in faceless manner. viii) The JAO shall upload in the ITBA Portal, the relevant documents along with the reply received for Section 148 notice from the Assessee. ix) Thereafter, the Directorate of Income Tax (Systems) forward the Section 148 cases to NaFAC to take further action. Immediately thereupon, the NaFAC shall assume the jurisdiction in terms of Section 144B of the IT Act. x) Once the NaFAC assumed its jurisdiction subsequent to the receipt of the information pertaining to Section 14....
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....s on the other, with respect I am unable to concur with the views expressed by the High Courts Delhi and Madras while inclined to follow the view /reasons expressed by the High Courts of Bombay, Telangana, Punjab and Haryana and Rajasthan, which has been extracted above and thus not repeated. 5.3. Apart from the reasons set out in their judgments by the High Courts of Bombay, Telangana, Punjab and Haryana High Courts, Rajasthan, this Court finds that conclusion arrived at by the above High Courts may also find support from the following reasons/aspects not examined but which may have a material bearing on the question of jurisdiction of officers under the faceless scheme: I) Scope of Assessment : 5.3.1. The High Courts of Delhi and Madras appear to proceed on the premise that re-assessment would commence only on issuance of notice under Section 148 of the Act and proceedings under Section 148A is atleast a step removed from commencement of proceedings relating to re-assessment. This, I would think involves dissection of proceeding relating to assessment of escaped income/ reassessment into two parts. The first part relating to assessment being until orders are passed under....
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....nder Section 148A of the Act inasmuch as the notice is preceded by an enquiry with respect to information, which suggests that income chargeable to tax has escaped assessment. In other words, proceedings under Section 148 A of the Act itself could be invoked only when there is information which suggests that income chargeable to tax has escaped assessment. It is thus an integral part of re-assessment/ assessment of escaped income and any attempt to treat it as distinct or removed from re-assessment would only result in distorting the scheme relating to reassessment/ assessment of escaped income. This would be clear if we bear in mind that Section 148A of the Act, was inserted with a view to legislatively incorporate the procedure laid down in GKN Driveshafts. The dissection of reassessment proceedings into two parts appear to be in conflict with the judgment of the Hon'ble Supreme Court on assessment being comprehensive and expansive to take within its fold all proceedings relating thereto referred supra. 5.3.4. It may also be relevant to note that Apex Court in the case of Union of India v. Ashish Agarwal reported in (2023) 1 SCC 617, while dealing with validity of reassess....
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.... 14. We have heard Shri N. Venkataraman, learned ASG appearing on behalf of the Revenue and Shri C.A. Sundaram and Shri S. Ganesh, learned Senior Advocates and other learned counsel appearing on behalf of the respective assessee. 15. It cannot be disputed that by substitution of Sections 147 to 151 of the Income Tax Act ("the IT Act") by the Finance Act, 2021, radical and reformative changes are made governing the procedure for reassessment proceedings. Amended Sections 147 to 149 and Section 151 of the IT Act prescribe the procedure governing initiation of reassessment proceedings. However, for several reasons, the same gave rise to numerous litigations and the reopening were challenged inter alia, on the grounds such as: (1) no valid "reason to believe", (2) no tangible/reliable material/information in possession of the assessing officer leading to formation of belief that income has escaped assessment, (3) no enquiry being conducted by the assessing officer prior to the issuance of notice; and reopening is based on change of opinion of the assessing officer and (4) lastly the mandatory procedure laid down by this Court in GKN Drive....
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....erefore, instead of quashing and setting aside the reassessment notices issued under the unamended provision of the IT Act, the High Courts ought to have passed an order construing the notices issued under the unamended Act/unamended provision of the IT Act as those deemed to have been issued under Section 148-A of the IT Act as per the new provision Section 148-A and the Revenue ought to have been permitted to proceed further with the reassessment proceedings as per the substituted provisions of Sections 147 to 151 of the IT Act as per the Finance Act, 2021, subject to compliance of all the procedural requirements and the defences, which may be available to the assessee under the substituted provisions of Sections 147 to 151 of the IT Act and which may be available under the Finance Act, 2021 and in law. ..... 25.1. The respective impugned Section 148 notices issued to the respective assessees shall be deemed to have been issued under Section 148-A of the IT Act as substituted by the Finance Act, 2021 and treated to be show-cause notices in terms of Section 148-A(b). The respective assessing officers shall within thirty days from today provide to the assessees th....
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....t is conscious that a matter which should have been, but has not been provided for in a statute cannot be supplied by Courts, as to do so will be legislation and not costruction. Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., reported in AIR 1933 PC 63 Kamalranjan Roy v. Secretary of State, reported in AIR 1938 PC 281 However, the same is not without exception and the following observations of Denning, L.J. cited with approval by the Supreme Court would make it clear: "When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he 41 can and should iron out the creases." 5.3.8. Yet another reason why I am inclined to depart from the restraint which Courts are....
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....ered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act." Given the above principle, it was observed that Section 12 is a fiscal provision and had to be construed strictly. It was further observed that any circumstance, situation, factor, or condition which was not contemplated by the Act could not be taken into consideration to raise the presumption regarding sale or purchase of the notified agricultural produce. It was held that the bye-law introduced additional factors such as "weighed", "measured", and "counted" which were not contemplated under Section 12. Therefore, the bye-laws were held to be ultra vires for widening the scope of the presumption under Section 12. ..... 72.2. A delegate cannot widen or constrict the scope of the parent legislation or the legislative policy prescribed under it; and ......" 5.3.10. Section 151A being an Act of parliament reflects the legislative policy. Importantly, Section 151A of the Act expressly includes within the scope of faceless assessment, conducting of enquiries, issuance of notice, passing order under Section 148A and issuance of notice under Section....
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....e including every other provision mentioned in Section 151A of the Act. The scheme as discussed supra is a piece of subordinate legislation and thus must be in conformity with the parent Act. The inclusion of Section 148A of the Act in the scheme appears to me to be a necessary consequence which ought to follow while framing the scheme by the Central Government. Keeping this in view, it appears that there is a need to depart from the normal rule of restraint which Courts would exercise while dealing with the case of cassus omissus. This would be clear for the Hon'ble Supreme Court, while dealing with cases of cassus omissus with reference to related provisions has departed from the above rule of restraint. In this regard, it may be relevant to note that the Apex Court while construing Rule 89 of Order 21 of the Code of Civil Procedure and Article 127 of the Limitation Act, 1963, had departed from the above rule of restraint. Rule 89 of Order 21 of CPC provided that if any person, claiming an interest in the property sold in execution of a decree, applies to have the execution sale set aside and deposits within thirty days from the date of the sale, five percent of the purchase ....
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....riods of limitation for making deposits and/or filing an application for setting aside the sale. It is by virtue of Order 21 Rule 89 CPC that an application for setting aside a sale and a deposit can be made. Order 21 Rule 89 CPC does not prescribe any period within which the application is to be made or deposit is to be made. All that Order 21 Rule 92(2) provides is that if the deposit is made within 30 days from the date of sale and an application is filed then the court would have no discretion but to set aside the sale. That does not mean that if the deposit is made after 30 days the court could not entertain the application. If the deposit is made beyond the period of 30 days, but within the period of 60 days, then it will be within the discretion of the court whether or not to grant the application. Thus, an application can be made within the period prescribed under Article 127 of the Limitation Act. As an application can be made within 60 days and, as stated above, no period for making a deposit is prescribed under Order 21 Rule 92(2) the deposit can also be made within 60 days. In our view, therefore, the view expressed in P.K. Unni case [(1990) 2 SCC 378] that Order 21 Rul....
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....sessment has expressly included proceeding under Section 148A of the Act. The scheme framed by the Central Government in exercise of the power conferred under Section 151A has omitted to include Section 148 A of the Act. The scheme ought to be in conformity with the parent Act. The inclusion of Section 148A of the Act in the scheme appears to me to be a necessary consequence which ought to follow while framing the scheme by the Central Government. Any attempt to keep Section 148A of the Act outside the scheme, may render the scheme itself vulnerable to challenge as constricting the scope and not being in conformity of the parent act, a consequence which ought to be avoided. 5.4. Contradictions in the judgment of Madras High Court: 5.4.1. Apart from the fact that this Court is inclined to adopt the reasoning of Bombay, Telangana, Punjab and Haryana High Courts and Rajasthan High Court, and conclusion of which finds support in the reasons discussed supra, with respect, this Court also finds that the order of the Madras High Court in the case of Mark Studio may possibly suffer from the following contradictions/fallacies: a) This Court would think that there is a distinc....
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....y complying with the conditions and the modalities mentioned in the scheme itself which were already discussed that in the absence of specific provision empowering the Faceless Assessment Officer in terms of Section 144B, the power and the Jurisdiction of the Jurisdictional Assessment Officer cannot be taken away as long as Section 148 notice sent by automated allocation based on risk management strategy and in a faceless manner in terms of the provisions of the Scheme. 43. In the present case, all the three ingredients have been duly complied with by the respondents in issuance of the notice. Therefore, by no stretch of imagination, one can construe that the respondents have sent the notice through ITBA portal not in the faceless manner. Notices were already issued in faceless manner." 5.4.2. The above finding would reduce "faceless assessment" to assessment by JAO by means of E-Proceedings that in my view with respect may not constitute assessment in a faceless manner. c) The learned Judge while dealing with the submission that the notice was digitally signed by the JAO and thus does not satisfy have been issued in a faceless manner would reject the contentio....