Telangana High Court
Bhagyalakshmi Educational Society vs Income Tax Officer on 26 March, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.7645 OF 2024
ORDER:
(per Hon'ble Sri Justice P.SAM KOSHY) Heard Mr.Dundu Manmohan, learned counsel for the petitioner and Ms.Sundari R Pasupati, learned Senior Standing Counsel for respondents. Perused the material available on record.
2. The instant Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India seeking for the following relief:
"to issue an appropriate writ order or direction more particularly one in the nature of Writ of Mandamus declaring the Assessment Order dt 18
03 2024 passed by the 3rd respondent u/s 147 r w s 144B of the Income tax Act for A Y 2015-16 vide DIN No ITBA/AST/S/147/2023 24/10628147991 which is passed as a consequence of the order passed u/s 148Ad dt 04 04 2022 vide DIN No ITBA/AST/F/148A/202223/10424679141 and the notice u/s 148 dt 04 04 2022 vide DIN No ITBA/AST/S/1481/2022 23/10424738251 issued by the JA01st respondent instead of FAO3rd respondent as void illegal and contrary to the provisions of Income tax Act and contrary to the Principles of Natural Justice".
3. One of the contentions that the petitioner has raised in the present Writ Petition is that under the amended provisions of the Act which came into effect from 01.04.2021, the respondents, while proceeding under Section 148 of the Act, were required to issue notice under 2 PSK,J & NTR,J W.P.No.7645 OF 2024 Section 148A and provide an opportunity of hearing to the assessee. As per the amended provision of law, the proceedings to be drawn are also in a faceless manner.
4. Whereas, learned counsel for the petitioner contended that, in the instant case, reopening has been initiated by the Jurisdictional Assessing Officer. In support of his contention, he relied upon the recent judgment rendered by this very Bench in WP.No.25903 of 2022 & batch, dated 14.09.2023 wherein this Court disposed of the batch of writ petitions to the limited extent.
5. On the other hand, learned Standing Counsel for the respondent-Department does not dispute that the said objection was decided in the aforesaid batch of Writ Petitions. However, he further contended that apart from the aforesaid objection, there have been other various objections also which the petitioner has raised in the writ petition.
6. So far as this contention of the learned counsel for the respondent-Department is concerned, this Bench, while disposing of said batch of writ petitions, had taken note of 3 PSK,J & NTR,J W.P.No.7645 OF 2024 the same at paragraph Nos.37 & 38 which are reproduced herein under:
"37. The preliminary objection raised by the petitioner is sustained and all these writ petitions stands allowed on this very jurisdictional issue. Since the impugned notices and orders are getting quashed on the point of jurisdiction, we are not inclined to proceed further and decide the other issues raised by the petitioner which stands reserved to be raised and contended in an appropriate proceedings."
"38. Since the Hon'ble Supreme Court had, in the case of Ashish Agarwal, supra, as a one-time measure exercising the powers under Article 142 of the Constitution of India, permitted the Revenue to proceed under the substituted provisions, and this Court allowing the petitions only on the procedural flaw, the right conferred on the Revenue would remain reserved to proceed further if they so want from the stage of the order of the Supreme Court in the case of Ashish Agarwal, supra."
7. In view of the same, we are inclined to allow the present writ petition also on similar terms. Accordingly, the present Writ Petition stands allowed on the objection of the petitioner that the proceedings have not been drawn in accordance with the amended provision but under the un-amended provision which is otherwise not sustainable.
8. As has been held by this Bench in the aforesaid batch matters, the rights of the parties would stand reserved as is envisaged at paragraph Nos.37 & 38 of the said order passed in the batch of writ petitions. 4
PSK,J & NTR,J W.P.No.7645 OF 2024
9. Further, from the perusal of the impugned order particularly the contents of paragraph No.3.3, wherein the assessing officer has referred to catena of judgments of the jurisdictional High Court i.e, the High Court for the State of Telangana, in various writ petitions under similar circumstances which have been allowed. Inspite of this fact being reflected in the impugned order, we fail to understand as to how still the authorities concerned proceeds and issues notices under Section 148 which otherwise in terms of the decision of the Division Bench of this Court in catena of decisions could have been issued only in a faceless manner. This fact is one which needs to be considered at the highest level, particularly the 2nd respondent or any other higher authorities in the Department. Learned counsel for the Department is instructed to appraise the 2nd respondent in respect of the observation made in the instant case for.
10. With the above observation, this writ petition stands allowed. No order as to costs.
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PSK,J & NTR,J W.P.No.7645 OF 2024 Consequently, miscellaneous petitions pending, if any, shall stand closed.
____________________ P.SAM KOSHY, J ____________________ N. TUKARAMJI, J Date: 26.03.2024 AQS/SA 6 PSK,J & NTR,J W.P.No.7645 OF 2024 THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No.7645 OF 2024 (per Hon'ble Sri Justice P.SAM KOSHY) 26.03.2024 Aqs/sa