Sita Ram vs Ito, Ward-67 (1) Delhi And Others.
2022 Latest Caselaw 844 Del

                          $~89
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      W.P.(C) 4039/2022
                                 SITA RAM                                         ..... Petitioner
                                                    Through: Mr. Sunil K. Mukhi, Advocate with
                                                            Mr. Ishan Garg, Advocate.

                                                    Versus

                                 ITO, WARD-67 (1) DELHI AND OTHERS.           ..... Respondents
                                                Through: Mr. Ruchir Bhatia, Advocate.


                          %                                     Date of Decision: 24th March, 2022



                          CORAM:
                          HON'BLE MR. JUSTICE MANMOHAN
                          HON'BLE MR. JUSTICE DINESH KUMAR SHARMA

                                                      JUDGMENT

MANMOHAN, J (Oral):

1. Present writ petition has been filed challenging the notice dated 31st March, 2021 issued by respondent no.2 under Section 148 of Income Tax Act, 1961 (hereinafter referred to as 'the Act').

2. Admittedly, the impugned notice was not only signed, but also issued on the same day i.e. 31st March, 2021. An SMS was sent to the petitioner informing of the notice which was received by the petitioner-assessee on 01st April, 2021.

3. Learned counsel for the petitioner states that in the present case, the approval/sanction by the Additional CIT, supplied by the NFAC, has been

Signature Not Verified

Digitally Signed By:KRISHNA BHOJ Signing Date:26.03.2022 13:04:26 issued manually, without DIN and bears manual signatures, and as such should be treated as invalid. In support of his contention, he relies upon the Circular No.19/2019 dated 14th August, 2019 issued by Central Board of Direct Taxes. He further states that sanction granted by the sanctioning authority under Section 151 of the Act has been granted by applying Section 147(b) of the Act, which has been repealed by Direct Tax Laws (Amendment) Act, 1987 w.e.f. 01st April, 1989. He further states that neither the approval nor sanction bears any date.

4. Issue notice.

5. Mr. Ruchir Bhatia, learned counsel accepts notice on behalf of the respondents. Mr. Bhatia states that the present writ petition is liable to be dismissed as the petitioner has not filed any objection prior to the filing the present writ petition. In support of his submission, he places reliance on the judgment of the Supreme Court in GKN Driveshafts (India) Ltd. vs. Income Tax Officer, (2003) 259 ITR 19 (SC).

6. In rebuttal , learned counsel for the petitioner states that the petitioner had written a letter in response to the reasons received by him. He places reliance on the judgment passed by Gujarat High Court in Kanubhai M. Patel HUF vs. Hiren Bhatt or his Successors to Office & 4, 2010 SCC OnLine Gujarat 7005 to contend that the judgment of the Supreme Court in GKN Driveshafts (India) Ltd. (supra) has been distinguished. The relied upon portion of the judgment of the Gujarat High Court is reproduced hereinbelow:-

"17. As regards the contention that the petitioners have not filed objections against the reasons recorded for reopening assessment under section 147 as laid down in the decision of the apex court in the case of GKN Driveshafts Ltd. (supra), in the

Signature Not Verified

Digitally Signed By:KRISHNA BHOJ Signing Date:26.03.2022 13:04:26 light of the facts which have come on record, no useful purpose would have been served by asking the petitioner to first undertake the said exercise. The decision of the apex court is required to be applied after considering the facts and circumstances of each case. In a given case, considering the facts and circumstances, the Court may not find it necessary to ask an assessee to first undertake the exercise of filing objections and thereafter to approach the Court."

7. Having heard learned counsel for the parties, this Court is of the view that the present writ petition is not maintainable inasmuch as the petitioner has not followed the procedure laid down in GKN Driveshafts (India) Ltd. (supra) prior to the filing of present writ petition. It is pertinent to mention that in the said judgment, it has been held by the Supreme Court that if an assessee is aggrieved by a reassessment notice, he is entitled to file objections before the Assessing Officer, who is bound to dispose of the same by way of a speaking order. Consequently, this Court is of the view that since the alternative effective remedy has not been resorted to, the present writ petition is not maintainable.

8. Though in the instant case, the petitioner has written a letter in response to the reasons received by it, yet it has not filed any objections. In fact, in the said letter, a Power of Attorney, copy of ITR, Bank statement have only been enclosed and no specific objection has been raised. Further, this Court is of the view that the judgment of the Gujarat High Court is not applicable to the facts of the present case. In any event, it is not open to a High Court to distinguish a judgment of the Apex Court especially when the latter is clear and categorical. Consequently, this Court is in agreement with the preliminary objection raised by the learned counsel for the respondent- revenue that the present writ petition is premature.

Signature Not Verified

Digitally Signed By:KRISHNA BHOJ Signing Date:26.03.2022 13:04:26

9. Accordingly, the same is dismissed with liberty to the petitioner to raise all its objections before the Assessing Officer in accordance with the judgment of the Supreme Court in GKN Driveshafts (India) Ltd. (supra).

MANMOHAN, J

DINESH KUMAR SHARMA, J MARCH 24, 2022/js

Signature Not Verified

Digitally Signed By:KRISHNA BHOJ Signing Date:26.03.2022 13:04:26