TaxTMI 
TaxTMI 
TaxTMI 
2025 (4) TMI 1679
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....25 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 Commissioner of Income Tax, Circle 1, LTU, Chennai; Commissioner of Income Tax, LTU, Chen....
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....s 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 premise that the documentary evidence was not submitted by petitioner. In response to the notice under Section 148 of the Act, ....
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....after 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 entire proceeding stands vitiated for want of jurisdiction. (c) That the language employed in Section 151A of the Act is unambiguous and the legislative intent behind introducing Section 151A of the A....
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.... 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 Bhangu vs. Union of India reported in 2024 SCC OnLine P&H 9337. (4) Sri Venkataramana Reddy Patloola vs. Deputy Commissioner of Income Tax, Circle 1(1), Hyderabad and Others reported in (2024) 468 ITR 181. (5) Jasjit Singh vs. Union of India reported in (2024) 467 ITR 52.....
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....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) or 142(1) of the Act by the JAO but after amendment NaFAC is vested with power to act from the stage of issue of notice under Section 143(2) of the Act or issue of notice under Section 142(1) of the Act after the selection of the case for scrutiny. Power of reopening of the assessment under Section 148 of the Act is not conferred on NaFAC either bef....
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.... 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 provisions relating to re-assessment/ assessment of escaped income. 5.1.2. Prior to 01.04.2021, the procedure to be followed in relation to re-assessment was laid down by the Supreme Court in the case of GKN Driveshafts (India) Ltd., vs. Income Tax Officers, reported in (2003) 1 SCC 72, wherein it was clarified that when a notice under Section 148 of the Income Tax Act is issued, t....
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.... 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 terms of Section 151A of the Act. 5.1.10. Central Government in exercise of its powers conferred under sub-sections (1) and (2) of Section 151A of the Act, framed a scheme titled "The E-Assessment of Income Escaping Assessment Scheme, 2022" vide Notification S.O.1466(E) [No.18/2022/F.NO.370142/16/2022-TPL(PART1) with effect from 29.03.2022. 5.1.11. Prior to the introduction of aforesaid scheme, on ....
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....e 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 portions of the judgments are extracted hereunder: (a) High Court of Telangana in the case of Kankanala Ravindra Reddy vs. Income -tax Officer, reported in 2023 SCC Online TS 4476: "25. A plain reading of the aforesaid two notifications issued by the Central Board of Direct Taxes dated 28-3- 2022 and 29-3-2022, it would clearly indicate that the Central Board of Direct Taxes was very clear in its mind when it framed the aforesaid two s....
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....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 faceless proceedings redundant. If the argument of Revenue is to be accepted, then even when notices are 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....
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....w 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 recomputation under section 147 of the Act. Therefore, if Revenue's arguments are to be accepted, there is no purpose of framing a Scheme only for clause 3(a) which is in any event already covered under faceless assessment regime in Section 144B of the Act. The argument of respondent, therefore, renders the whole Scheme redundant. An argument which renders the whole Scheme otiose cannot be accepted as correct interpretation of the Scheme. The phrase "to the extent provided in Section 144B of....
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....d 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 only in relation to passing of assessment orders in cases of central charges and international tax charges. Any other interpretation would amount to doing violence with the language employed in the scheme/notification dated 29.03.2022, Section 144B(2) of the Act and order dated 06.09.2021. Since in our view, the plain and unambiguous language used in the scheme and order dated 06.09.2021 shows that the notice under Section 148 does not fall within the 'exception', the judgments cited by the learned Senior Standing Cou....
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....tion 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 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." (emphasis supplied) 5.2.3. Having examined the judgments of the Bombay, Telangana, Punjab and Haryana and Rajasthan High Court, finding that with the introduction of Faceless Scheme, revenue must necessarily conduct/initiate proceeding....
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....asis 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 the concepts of automated allocation and faceless distribution would come into play. The actual assessment would thus be conducted in a faceless manner and in accordance with an allocation that the NFAC would make. This, in our considered opinion, would be the only legally sustainable construction liable to be accorded to the scheme. Our conclusion would thus strike a harmonious balance between the evaluation of information made available to an AO, the preliminary consideration of information for the purposes of formation of opinion and its ultimate assessment in a faceless manner." b) Th....
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....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 148 cases from the Directorate of Income Tax (Systems), the NaFAC shall issue the notice under Section 143(2) or 142(1) of the IT Act calling for the further information from the Assessee. xi) In terms of Sub~Section (2) of Section 144B of the IT Act, the Board shall have power to specify the territorial area, or persons or class of persons, incomes or class of incomes, or cases or class of cases, in which, the assessment shall be made in faceless manner. xii) The guidelines issued on 24.05.2023, by the Board, is well within the powers available to them, in terms of the provisions of Sub~Section (2) of Section 144B of the IT Act and issuance of such guidelines ....
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.... 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 Section 148A and corresponding issuance of notice under Section 148 of the Act. The second part being post issuance of notice under Section 148 of the Act, commencing with issuance of notice under Section 143(2) or Section 142(1) of the Act. While, the first part is to be carried out/performed by JAO, second part of assessment must be by FAO. This dissection appears to be artificial. 5.3.2. The above view also appears to be in conflict with the judgments of the Hon'ble Supreme Court wherein assessment has been held to be comprehensive and would encompass the entire gamut of proceedings starting with filing of returns or issue of notice and ending with the determination of tax payable by assessee. Im....
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....iveshafts. 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 reassessment notices issued post 01.04.2021 under the erst while priovisions governing re-assessment viz., Sections 148 to Section 151 of the Act and not in terms of the amended Sections 147 to 149 and Section 151 of the Act which would govern re-assessment with effect from 01.04.2021, observed as under: "10. Parliament introduced reformative changes to Sections 147 to 151 of the Income Tax Act, 1961 governing reassessment proceedings by way of the Finance Act, 2021, which was passed on 28-3-2021. The substituted Sections 147 to 149 and Section 151 applicable w.e.f. 1-4-2021 ..... 11. In sub-section (1) of Section 151-A of the Income Tax Act, in the opening portion, after the words and figures "issuance of notice under Section 148", the words, figures a....
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....terial/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 Driveshafts (India) Ltd. v. ITO [GKN Driveshafts (India) Ltd. v. ITO, (2003) 1 SCC 72], has not been followed. ..... 17. Under the substituted provisions of the IT Act vide the Finance Act, 2021, no notice under Section 148 of the IT Act can be issued without following the procedure prescribed under Section 148-A of the IT Act. Along with the notice under Section 148 of the IT Act, the assessing officer ("AO") is required to serve the order passed under Section 148-A of the IT Act. Section 148-A of the IT Act is a new provision which is in the nature of a condition precedent. Introduction of Section 148-A of the IT Act can thus be said to be a game changer with an aim to achieve the ultimate object of simplifying the tax administration, ease compliance and reduce litigation. 18. But prior to pre-Finance Act, 2021, while reope....
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....ll 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 the information and material relied upon by the Revenue so that the assessees can reply to the notices within two weeks thereafter. 25.2. The requirement of conducting any enquiry with the prior approval of the specified authority under Section 148-A(a) be dispensed with as a one-time measure vis-à-vis those notices which have been issued under Section 148 of the unamended Act from 1-4-2021 till date, including those which have been quashed by the High Courts." (emphasis supplied) 5.3.5. The above observations would suggest the following: a) Proceedings under Section 148A of the Act is an integral part of re-assessment. b) Proceedings under Section 148 A of the Act is a condition precedent and thus to say that re-assessment would commence only after issuance of a notice under Section 142(1) or Section 143(2) of the Act, after completion of proceedings under Section 148A of the Act, results in bringing ....
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....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 normally required to exercise while examining a case of omission by legislature or its delegate, is in view of the fact that Section 151A of the Income Tax Act (Parent Act) provides and contemplates a scheme being framed for assessment, re-assessment, re computation under Section 147, 148A and 148 of the Act. 5.3.9. It is trite law that legislature shall enunciate the policy before entrusting the power to make subordinate/subsidiary legislation to another body of its choice. The delegate must necessarily work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. The relevant portion is extracted hereunder: (i) Agricultural Market Committee v. Shalimar Chemical Works Ltd., reported in (1997) 5 SCC 516: "26. The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative....
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....cludes within the scope of faceless assessment, conducting of enquiries, issuance of notice, passing order under Section 148A and issuance of notice under Section 148 of the Act. Section 151A confers power on the Central Government to make a scheme by notification in the official gazettee for the purpose of effectuating the above legislative policy. The Central Government has in exercise of its powers conferred under Section 151A of the Act framed a scheme wherein Section 148A of the Act, has been omitted while including other provisions mentioned in Section 151A of the Act including Section 148 of the Act, which is consequential to a proceeding under Section 148A of the Act. It appears doubtful if it is even open to the Central Government to frame a scheme leaving out one of the elements enumerated in the parent Act viz., Section 148A of the Act, while exercising its powers conferred under Section 151A of the Act, moreso when the enabling provision i.e., Section 151 A of the Act expressly includes Section 148A of the Act. It appears unless Section 148 A of the Act is read into the scheme framed under Section 151A of the Act, it would result in constricting the scope of Section 151....
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....n 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 money for payment to the purchaser and the amount payable to the decree holder for recovery of which the sale was held, 'the court shall make an order setting aside the sale'. The period of limitation for applying under Rule 89 for setting aside the sale was also thirty days under Article 127 of the Limitation Act, 1963 before its amendment by Act 104 of 1976 by which this period of limitation was enlarged from thirty days to sixty days. Parliament, however, omitted to make corresponding amendment in Rule 89 of Order 21 to enlarge the period for making the deposit from thirty days to sixty days. The object and reasons of the Bill which became Act 104 of 1976 showed that the period was enlarged from thirty days to sixty days as the period of thirty days was considered to be too short for making the de-posit often causing hardship. Having regard to this object a two judge bench of the Supreme Court in Dharwadkar held that not only the period of limitation for making an application for setting aside the sale was ex-tended....
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....le 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 Rule 92(2) CPC prescribes a period of limitation for making a deposit is not correct." 5.3.12. Another illustration of the difficulty faced in construction when a related provision is not amended is Section 25 of the Code of Civil Procedure ("herein after referred to as "CPC") as substituted by the Amendment Act of 1976. Section 25 of CPC confers power on the Supreme Court to transfer any suit appeal or other proceeding from a High Court or Civil Court in one state to a High Court or Civil Court in another state. The amending Act did not delete or omit Section 23(3) of CPC which provides that where several Courts having jurisdiction are subordinate to different High Courts, the application for transfer shall be made to the High Court within the local limits of whose jurisdiction the High Court in which the suit is brought is situate. Be-cause of continuance of Section 23 of CPC, it was held by Bombay, Andhra Pradesh and Madhya Pradesh High Courts that it was still open for a party to apply to the High Court for transfer of a proceeding....
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....n the case of Mark Studio may possibly suffer from the following contradictions/fallacies: a) This Court would think that there is a distinction between "faceless assessment" or "assessment in a faceless manner" and assessment by JAO of cases selected by the Directerate of Income Tax (Systems) and served electronically or by way of "e-proceedings". A faceless assessment is one where assessment would be carried out by a specific "assessment unit" which has been assigned case selected for the purposes of faceless assessment. Assessment is carried out by "assessment unit", to which it has been assigned and not JAO. The learned judge has equated automated allocation of cases by the Directerate of Income Tax (Systems) and sending the notices/orders electronically with faceless assessment. Applying the above reasoning of the learned Judge it would result in JAO carrying out assessment of cases automatically allocated. In other words it would result in the jurisdictional officer continuing to have exclusive jurisdiction over assessee within the jurisdiction of JAO. b) The learned Judge finds that notices in the above cases were sent in a faceless manner. In other words, the learned judg....
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....JAO and thus does not satisfy have been issued in a faceless manner would reject the contention by finding that it is only a procedural error. The following extracts are relevant: "44. By referring the notices, the learned counsel for the petitioner has agreed that the e~notice was sent by JAO through e~mail id of the assessee from the web portal of ITBA. However, she would contend that the Officer name has been mentioned in the notices. As far as this contention is concerned, this Court is of the view that if all the notices have been send in faceless manner, name of the Officer should not be mentioned. However, it will only be considered as a procedural error, which will not vitiate the entire initiation of the proceedings and hence, it will not affect the jurisdiction to issue the notice by the respondent. But in future cases, the respondent is being advised not to mention the name of the officer and from where the notices has been sent." 5.4.3. The above finding appears to strike a discordant note with the finding in the other portions of the order wherein, it has been found that faceless assessment is only a mode of assessment by the JAO, I say so since if it is only the JA....