Bombay High Court
Meybuen Ventures Private Limited vs Income Tax Officer Ward 2(2)(3) Mumbai on 22 September, 2025
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
116.wpl.25823.24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 25823 OF 2024
Meybuen Ventures Pvt Ltd .. Petitioner
Versus
Income Tax Officer Ward 2 (2) (3), Mumbai
& Ors .. Respondents
Mr. Devendra H. Jain, with Mr. Shashank A. Mehta, Saukhya
Lakade, Advocates for the Petitioner.
Mr. N. C. Mohanty, Advocates for the Respondents.
Digitally signed
ANJALI by ANJALI
TUSHAR ASWALE
TUSHAR
ASWALE 18:42:13 +0530
Date: 2025.09.23
CORAM: B. P. COLABAWALLA &
AMIT S. JAMSANDEKAR, JJ.
DATE: SEPTEMBER 22, 2025
P. C.
1. Rule. Respondents waive service. With the consent of parties,
Rule made returnable forthwith and heard finally.
2. The above Writ Petition not only challenges the Notice issued
under Section 148 of the Income Tax Act, 1961 (for short "I. T. Act") but also
the Assessment Order dated 28th June 2024 passed under Section 147 read
with Section 144B and the Notice of Demand dated 28 th June 2024 issued
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under Section 156 of the I. T. Act. Additionally, the Notice of Penalty under
Section 274 read with Section 271 (1) (c) of the I. T. Act is also challenged.
3. One of the grounds in the aforesaid challenge is that the Notice
issued under Section 148, is issued by the Jurisdictional Assessing Officer,
when the law mandates that it has to be issued by the Faceless Assessing
Officer. This, according to the Petitioner, is a fatal defect and therefore, the
Notice issued under Section 148 has to be quashed. If the said Notice is
quashed, then, all actions emanating therefrom, would also have to go, is the
submission of the Petitioner.
4. It is the Petitioner's contention that this issue is squarely covered
by a decision of a Division Bench of this Court in the case of Hexaware
Technologies Ltd. V/s. Assistant Commissioner of Income-tax,
circle 15(1)(2)[(2024) 162 taxmann.com 225 (Bombay)].
5. On the other hand, Mr. Mohanty, the learned counsel appearing
on behalf of the Revenue, submitted that this is a second Writ Petition that is
filed by the Petitioner. He submitted that earlier, the Petitioner approached
this Court by filing Writ Petition (L) No. 12043 of 2024. In that Writ
Petition, the Petitioner also challenged the issuance of the very same Notice
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issued under Section 148 of the I. T. Act. In that Writ Petition, when it was
heard, the learned counsel appearing on behalf of the Petitioner gave up his
challenge to the Notice issued under Section 148 and restricted his challenge
only to the order of Assessment dated 29 th February 2024 passed under
Section 147 read with Section 144B of the I. T. Act and the consequent Notice
of Demand and Penalty proceedings. Since this Court was of the view that
the Assessment Order dated 29 th February 2024 was passed in breach of
principles of natural justice, it set aside the said Assessment Order and
remanded the matter to the Assessing Officer to pass a fresh Assessment
Order after giving a hearing to the Petitioner. It is pursuant to this order of
the High Court (dated 6 th May 2024) that the Assessing Officer heard the
Petitioner and thereafter passed a fresh Assessment Order dated 28 th June
2024 which is assailed in the present Writ Petition. In these facts and
circumstances, Mr. Mohanty submitted that the Petitioner is now precluded
from challenging the Notice issued under Section 148 on any ground
whatsoever. Consequently he submitted that the above Writ Petition be
dismissed with costs.
6. We have heard the learned counsel for the parties. We have also
perused the papers and proceedings in the above Writ Petition. It is not in
dispute that in the facts of the present case, the Notice issued under Section
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148 of the I.T. Act is issued by the Jurisdictional Assessing Officer. In the
case of Hexaware Technologies Ltd. (supra), this Court has categorically
held that any Notice under Section 148, issued after 29 th March 2022, has to
be issued by the Faceless Assessing Officer under the faceless procedure and
cannot be issued by the Jurisdictional Assessing Officer. In other words, in
Hexaware Technologies Ltd. (supra), this Court has clearly held that the
Jurisdictional Assessing Officer had no jurisdiction to issue the Notice under
Section 148 of the I. T. Act. Once this is the case, we are of the view that
notwithstanding the fact that the Petitioner had given up its challenge to the
Section 148 Notice, since the Jurisdictional Assessing Officer
inherently lacked jurisdiction to issue the said Notice, the same would not
preclude the Petitioner from raising this issue in the present Writ Petition. It
is now too well settled that when an Authority inherently lacks jurisdiction, it
cannot be conferred jurisdiction even with the consent of the parties.
7. In the view that we take we are supported by a decision of the
Hon'ble Supreme Court in the case of Union of India v/s Rajeev Bansal
reported in [2024] 167 taxmann.com 70 (SC). The Hon'ble Supreme
Court clearly opined that if a statute expressly confers a power or imposes a
duty on a particular authority, then such power or duty must be exercised or
performed by that authority itself. The Supreme Court further opined that
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when a statute vests certain power in an authority to be exercised in a
particular manner, then that authority has to exercise its power following the
prescribed manner. Any exercise of power by statutory authorities
inconsistent with a statutory prescription is invalid. A statutory authority
may lack jurisdiction if it does not fulfill the preliminary conditions laid down
under the statute, which are necessary to exercise its jurisdiction. There
cannot be any waiver of a statutory requirement or provision that goes to the
root of the jurisdiction of assessment. An order passed without jurisdiction is
a nullity and any consequential order passed or action taken will also be
invalid and without jurisdiction. The relevant portion in the case of Rajeev
Bansal (supra) setting out the aforesaid propositions read thus:-
"30. If a statute expressly confers a power or imposes a duty on a
particular authority, then such power or duty must be exercised
or performed by that authority itself Dr Premachandran
Keezhoth v. Chancellor, Kannur University, 2023 SCC OnLine
SC 1592. Further, when a statute vests certain power in an
authority to be exercised in a particular manner, then that
authority has to exercise its power following the prescribed
manner CIT v. Anjum M.H. Ghaswala [2001] 119 Taxman
352/252 ITR 1/[2002] 1 SCC 633; State of Uttar Pradesh v.
Singhara Singh 1963 SCC OnLine SC 23. Any exercise of power
by statutory authorities inconsistent with the statutory
prescription is invalid. Tata Chemicals Ltd. v. Commissioner of
Customs (Preventive) [2015] 58 taxmann.com 126/52 GST 94
(SC)/[2015] 11 SCC 628. Section 34 of the Income-tax Act 1922
prescribed a duty on Income-tax Officers to seek prior approval
of the Commissioner before issuing a reassessment notice. In
CIT v. Maharaja Pratapsingh Bahadur of Gidhaur, [1961] 41
ITR 421 (SC)/1960 SCC OnLine SC 55 a three-Judge Bench of
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this Court held that a notice issued under section 34 without
prior approval of the Commissioner was invalid.
31. The Income-tax Act 1961 also mandates assessing officers to fulfil
certain pre-conditions before issuing a notice of reassessment.
Section 149 requires assessing officers to issue a notice of
reassessment under section 148 within the prescribed time limits.
Further, Section 151 requires assessing officers to obtain sanction
of the specified authority before issuing notice under section 148.
In Chhugamal Rajpal v. S P Choliha, [1971] 79 ITR 603 (SC), a
three-Judge Bench of this Court held that Section 151 must be
strictly adhered to because it contains "important safeguards."
Chhugamal Rajpal (Supra).
32. A statutory authority may lack jurisdiction if it does not fulfil the
preliminary conditions laid down under the statute, which are
necessary to the exercise of its jurisdiction Chhotobhai Jethabhai
Patel and Co. v. Industrial Court, Maharashtra, [1972] 2 SCC
46. There cannot be any waiver of a statutory requirement or
provision that goes to the root of the jurisdiction of assessment
Superintendent of Taxes (supra). An order passed without
jurisdiction is a nullity. Any consequential order passed or action
taken will also be invalid and without jurisdiction Dwarka
Prasad Agarwal (D) By Lrs. v. B D Agarwal [2003] 6 SCC 230
Thus, the power of assessing officers to reassess is limited and
based on the fulfilment of certain preconditions CIT v. Kelvinator
of India Ltd. [2010] 187 Taxman 312/320 ITR 561 (SC)/[2010] 2
SCC 723 [[...] Reassessment has to be based on the fulfilment of
certain precondition [...]"]."
(emphasis supplied)
8. Considering these facts and circumstances, we are of the view
that notwithstanding the fact that the Petitioner had initially given up its
challenge to the Notice under Section 148 of the I. T. Act, it can certainly
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raise the challenge in the present Writ Petition because the Jurisdictional
Assessing Officer inherently lacked jurisdiction to issue the said Notice as
laid down by this Court in its judgment rendered in Hexaware Technologies
Ltd. (supra).
9. At this stage, Mr. Mohanty pointed out that the Revenue has
challenged the decision in Hexaware Technologies Ltd. (supra), before the
Hon'ble Supreme Court and the said challenge is pending. He further stated
that the Supreme Court is likely to take up the matter shortly. In such
circumstances, he submitted that rather than allowing the present Petition,
the same be admitted and the parties be given liberty to mention the above
matter, once a decision is rendered by the Hon'ble Supreme Court.
10. Under normal circumstances, and like we have done in several
other matters, we would not have acceded to this request. However, the facts
of the present case are peculiarly different. In the present case, the challenge
to the Section 148 Notice was originally given up by the Petitioner, when it
filed its earlier Petition, namely, Writ Petition (L) No.12043 of 2024. Though
we are of the opinion that notwithstanding the aforesaid, the petitioner could
lay a challenge to the Notice issued under Section 148 on the limited ground
that the Assessing Officer inherently lacked jurisdiction to issue the said
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notice, whether the Petitioner can challenge the said Notice on various other
grounds, at least prima facie, is doubtful. In these circumstances we are of
the view that rather than allowing the Writ Petition, it would be in the
interest of all parties, if the above Petition is admitted and await the outcome
of the decision of the Hon'ble Supreme Court in the case of Hexaware
Technologies Ltd. (supra).
11. In these circumstances, we issue Rule.
12. As and by way of interim relief, till the disposal of this Writ
Petition, we direct that the Notice issued under Section 148 of the I. T. Act
shall not be implemented and/or acted upon. Consequently, the Assessment
Order dated 28th June 2024 or the Demand Notice or the Penalty Notices
shall also not be implemented and/or acted upon till the disposal of this Writ
Petition.
13. In the event, the Hon'ble Supreme Court in Hexaware
Technologies Ltd. (supra), holds that the Jurisdictional Assessing Officer
does have jurisdiction to issue the Section 148 Notice, then, whether the
Petitioner can challenge the said Notice on other grounds, will be an issue
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that this Court would decide when the Petition is heard after the decision of
the Hon'ble Supreme Court in Hexaware Technologies Ltd. (supra).
14. We grant liberty to the parties to mention the above Writ
Petition once a decision is rendered by the Hon'ble Supreme Court in the case
of Hexaware Technologies Ltd. (supra).
15. This order will be digitally signed by the Private Secretary/
Personal Assistant of this Court. All concerned will act on production by fax
or email of a digitally signed copy of this order.
[AMIT S. JAMSANDEKAR, J.] [B. P. COLABAWALLA, J.]
SEPTEMBER 22, 2025
Aswale
