Bombay High Court
Rahul Jatinder Suri vs Union Of India on 8 May, 2024
Author: A. S. Gadkari
Bench: A. S. Gadkari
2024:BHC-OS:7789-DB RPW(L)4875,4883,4968,4973.docx
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L.) NO. 4883 OF 2023
IN
WRIT PETITION NO. 2016 OF 2022
ALONG WITH
REVIEW PETITION (L.) NO. 4973 OF 2023
IN
WRIT PETITION NO. 2196 OF 2022
ALONG WITH
REVIEW PETITION (L.) NO. 4968 OF 2023
IN
WRIT PETITION NO. 2276 OF 2022
ALONG WITH
REVIEW PETITION (L.) NO. 4875 OF 2023
IN
WRIT PETITION NO. 2822 OF 2022
Rahul Suri, ]
4 Vikas Park, ]
Jai Pankhi Co-Op. HSG Society, ] Review
Juhu Tara Raod, ] Petitioner
Juhu,Mumbai-400049 ]
Versus
1. Union of India, ]
Through Secretary, ]
Ministry of Finance ]
Department of Revenue, ]
Room No. 46, North Block, ]
New Delhi - 110001 ]
] Respondents
2. Assistant Commissioner of ]
Income tax Central Circle 3(1) ]
Room No.1924,19th floor, ]
Page 1 of 9
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RPW(L)4875,4883,4968,4973.docx
Air India Building, ]
Nariman Point, ]
Mumbai- 400021 ]
Dr. Vineet Kothari, Senior Advocate along with Rajendra i/by S.R.
Lodhe-Advocate for the Review Petitioner.
Mr Akhileshwar Sharma, Advocate for the Respondents.
CORAM: A. S. GADKARI &
VALMIKI MENEZES, JJ.
RESERVED ON: 13th February 2024
PRONOUNCED ON : 8th May 2024
JUDGMENT (Per Valmiki Menezes, J.) :
-
1) These Review Petitions seek to review a common Order
dated 04.11.2022 passed in Writ Petition No.2016/2022 (Assessment
Year 2018-19), Writ Petition No.2196/2022 (Assessment Year 2015-16),
Writ Petition No.2276/2022 (Assessment Year 2014-15) and Writ
Petition No.2822/2022 (Assessment Year 2013-14). The Review
Petitioner Rahul Suri is the original Petitioner in all four writ petitions.
2) The primary grounds for seeking review of the common
Order dated 04.11.2022, as raised in the petitions and submitted by
learned Senior Advocate Dr. Vineet Kothari for the Petitioner are as
under:-
a) That, by the order sought to be reviewed, this Court has
correctly set aside the four assessment orders dated
RPW(L)4875,4883,4968,4973.docx
03.03.2022 passed under Section 144 r/w Section 147 of
the Income Tax Act, 1969 (the Act), but however, there is
an error apparent on the face of the record committed by
this Court which thereafter took a course to remand all four
matters back to the jurisdictional assessing officer for
passing assessment orders afresh in accordance with law;
This submission was based on the contention that the
directions of this Court remanding the case are contrary to
the law laid down by the Hon'ble Supreme Court in Union
of India & Ors. vs. Ashish Agarwal , reported in (2023) 1
SCC 617 and in GKN Driveshafts (India) Ltd. vs. Income
Tax Officer, reported in (2003) 1 SCC 72.
b) That, the Revenue having admitted in its Affidavit in reply
dated 19.08.2022 of Garima Gaur, Deputy Commissioner of
Income Tax, that the Petitioner had in fact filed his return of
income in response to the notice dated 31.03.2021 under
Section 148 of the Act and had made a demand for a copy
of the reasons for reopening, which admittedly were not
given to the Petitioner, the absence in furnishing reasons
vitiates the assessment order, which was passed without any
jurisdiction, as held in G.K.N. Driveshafts (supra).
RPW(L)4875,4883,4968,4973.docx
3) The Revenue has opposed the review petitions by filing an
Affidavit in reply dated 09.06.2023 of the said Garima Gaur, Deputy
Commissioner of Income Tax-Central Circle-3(1), Mumbai, stating
therein that, there exists no grounds for review and the Review Petitions
partake of grounds of an appeal, which is impermissible in review
jurisdiction. Shri Akhilesh Sharma, learned Advocate for the
Respondents submitted that, the impugned orders were passed after
considering the law laid down in the aforementioned judgments and to
balance out the interest of the Revenue with that of the assessee, since a
genuine mistake occurred as stated in the Affidavit in reply to the
petition, due to a technical glitch in the portal of the department,
whereby the return of income filed by the Petitioner and the request for
the reasons for reopening assessment were not seen by the Assessment
Officer, who proceeded to pass the four assessment orders on the
assumption that no reply was forthcoming. He submits that the law laid
down in G.K.N. Driveshafts (supra) and Ashish Agarwal (supra) would
not be attracted to the facts of this case. He further submits that the
grounds of review amount to a hearing of the matter on its merits, which
is impermissible, there being no error apparent in the orders sought to
be reviewed.
4) Before we proceed to weigh the rival submissions on
RPW(L)4875,4883,4968,4973.docx
whether these Review Petitions should be allowed, some background
facts are required to be noted by us, which would have a bearing on
whether these Review Petitions should be entertained.
4.1) Notice under Section 148 of the Act was sent to the
Petitioner on 09.03.2021 (as claimed in the assessment order dated
03.03.2022), which the Petitioner claimed had never been received by
him due to a change of email ID which he claims was notified to the
department. Thereafter, notice under Section 142(1) dated 09.12.2021
was also sent by the department, purportedly on the old email address
which was also not received by the assessee, after which the Petitioner
claims he received a notice dated 01.01.2022 directing him to file a
Return for AY 2021-22 on his new email ID. Thereafter, he received a
copy of the same notice on 03.01.2022 on his other email ID and a final
show cause notice which was received by him on both his email IDs on
04.02.2022. The Petitioner claims that he filed his Return in response to
notice dated 09.03.2021 (for AY 2013-14) on 06.02.2022 and by
another letter of 06.02.2022, he also requested for reasons for reopening
and a copy of the approval for the proposal for reopening.
4.2) In the counter affidavit to the Petitions, the Revenue stated
that a genuine mistake occurred due to a technical glitch in the portal of
the department, whereby the return of income filed by the Petitioner and
RPW(L)4875,4883,4968,4973.docx
the request for the reasons for reopening assessment were not seen by
the Assessment Officer, who proceeded to pass the four assessment
orders dated 03.03.2022 on the assumption that no reply was
forthcoming.
4.3) Against the reassessment orders dated 03.03.2022 passed
under Section 144 r/w Section 147 of the Act, the assessee filed appeals
under the Act before the National Faceless Assessment Centre (NFAC),
Delhi on 26.03.2022 under Section 246A of the Act in which it sought a
stay of the demand notice under Section 220(3) on 01.04.2022. An
application dated 04.04.2022 was also filed before the Principal
Commissioner of Income Tax requesting for stay of the demand. Yet
another application was filed on 06.04.2022 before the CIT (Appeals)
requesting stay of the demand notice.
4.4) Thereafter, these four writ petitions were filed seeking
quashing of the orders of assessment dated 03.03.2022 in addition to
which the Petitioner also sought a writ of mandamus to direct the
Revenue to stay the demand raised on the Petitioner and a direction to
the NFAC to decide the pending appeals. It was in the background of
these reliefs sought in the petitions, and based upon the facts stated in
the affidavit in reply of the bona fide mistake of the AO in not noticing
that the Return of the Petitioner had been filed with a request to furnish
RPW(L)4875,4883,4968,4973.docx
the reasons for reopening assessment, that the orders sought to be
reviewed were passed.
5) The two questions that arise for deciding these review
Petitions :-
a) Whether the order suffer from an error apparent on the face
of the record, the error being that the same are passed
contrary to the binding precedent in Ashish Agarwal
(supra) and G.K.N. Driveshafts (supra);
b) Whether there is an error apparent on the face of the record
of the facts stated in the petitions and affidavit in reply,
necessitating a review of the order passed in the petitions.
6) On the first question, considering the judgment of the
Supreme Court in Ashish Agarwal (supra), what has been clearly laid
down therein is the procedure to be followed by the Revenue for
assessment years prior to the amendment of the Act, if a notice under
Section 148 is issued on or after 01.04.2021, the same shall be treated
and deemed to be a notice issued in terms of new Section 148A under
the amended provision. Ashish Agarwal (supra) does not cover situations
where the notice under Section 148 of the unamended Act was sent to
the assessee prior to 01.04.2021, i.e. in the present case sent on
31.03.2021 and the Return filed and application seeking reasons for
RPW(L)4875,4883,4968,4973.docx
reopening was requested after 01.04.2021. Thus, in our opinion, in the
facts of this case, the law laid down in Ashish Agarwal (supra) would not
apply and come to the aid of the Petitioner in seeking review of the
order.
7) G.K.N. Driveshafts (supra) laid down that, when a notice
under Section 148 of the Act is issued, the assessee is required to file a
Return, and if he so desires, seeks reasons for issuing the notice. It
further holds that, if the assessee takes this course, the AO is bound to
furnish reasons within a reasonable time and on receipt of the reasons,
the assessee is entitled to file objections, which are required to be heard
and disposed of with a speaking order, before proceeding with the
assessment. In G.K.N. Driveshafts (supra), the notices under Section 148
were challenged before the High Court which, whilst dismissing the
petition, took a view that all objections to that notice could have been
taken up before the AO and the petition was premature. Upholding this
view, the Supreme Court has only set down a procedure of how the AO
should deal with the matter before an assessment order is passed. In our
opinion, G.K.N. Driveshafts (supra) does not lay down the proposition
that the passing of an assessment order which is, as in this case on the
bona fide mistake due to a system glitch of not realising that the Return
had been in fact uploaded along with a request for reasons, results in the
RPW(L)4875,4883,4968,4973.docx
entire proceeding under Section 148 being rendered illegal and a non
est. In the facts of the present case, G.K.N. Driveshafts (supra) would not
apply and a view was taken in this Court's order dated 04.11.2022 based
upon the statement in the affidavit in reply. We therefore opine that on
the first question, the common order in question is not open to review, as
there is no error apparent on the face of the record on the ground of non
consideration of a binding precedent.
8) Considering the second question, we have gone through the
entire record, including the Affidavit in reply and a view having been
taken by this Court to set aside the impugned common Order and grant
the Petitioner with an opportunity to receiving the reasons for reopening
of assessment and a hearing before any orders are passed for
reassessment, in line with the procedure laid down in G.K.N. Driveshafts
(supra) and are of the opinion that there is no ground made out for
review of the common order. The submissions made are more in the
nature of seeking reappreciation of the entire matter on its merits, which
is impermissible in review jurisdiction.
9) For all the reasons stated above, there being no grounds
calling for review of common Order dated 04.11.2022, we dismiss these
Review Petitions.
( VALMIKI SA MENEZES, J. ) ( A. S. GADKARI, J. )
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN
Date: 2024.05.10
14:34:28 +0530
