Himachal Pradesh High Court
Usha Rani vs . Income Tax Officer, Ward-Parwanoo And ... on 1 August, 2024
Author: Mamidanna Satya Ratna Sri Ramachandra Rao
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao
Usha Rani Vs. Income Tax Officer, Ward-Parwanoo and others.
.
CWP No. 7577 of 2024
01.08.2024 Present:- Mr. Praveen Sharma, Advocate, for the petitioner.
Mr. Neeraj Sharma and Mr. Ishaan Kashyap, Advocates, for
respondents no. 1 to 3.
CWP No. 7577 of 2024 and CMP No. 12899 of 2024
Notice to respondents No.1 to 3. Mr. Ishaan Kashyap,
Advocate, accepts notice for respondents no. 1 to 3. 2. Prima-facie, we are of
the view that the impugned notice, Annexure P-2 issued under Section 148
of the Income Tax Act, 1961 by the 1st respondent, who is the Jurisdictional
Officer, is wholly without jurisdiction having regard to Section 151-A,
introduced in the Income Tax Act, 1961 w.e.f. 01.11.2020 and the
notification issued on 28.03.2022 thereunder, which specifically
contemplates that there would be automated allocation system in accordance
with risk management strategy formulated by the CBDT and it is not the
case of the revenue that the 1st respondent is an Officer who has been so
randomly allocated as per the Scheme. 3. Similar view has been taken by the
Telangana High Court in a judgment dt.14.09.2023, rendered in CWP No.
25903 of 2023 and other connected matters, titled as Kankanala Ravindra
Reddy Vs. Income Tax Officer and two others in paras 25 to 27 & 31,
which read as under:-
"25. A plain reading of the aforesaid two notifications
issued by the Central Board of Direct Taxes dated
28.03.2022 and 29.03.2022, it would clearly indicate
that the Central Board of Direct Taxes was very clear
in its mind when it framed the aforesaid two schemes
with respect to the proceedings to be drawn under
Section 148A, that is to have it in a faceless manner.
There were two mandatory conditions which were
required to be adhered to by the Department, firstly,
.
the allocation being made through the automated
allocation system in accordance with the risk
management strategy formulated by the Board under
Section 148 of the Act. Secondly, the reassessing has
to be done in a faceless manner to the extent provided
under Section 144B of the Act.
26. After the introduction of the above two schemes, it
becomes mandatory for the Revenue to
conduct/initiate proceedings pertaining to
reassessment under Section 147, 148 & 148A of the
Act in a faceless manner. Proceedings under Section
147 and Section 148 of the Act would now have to be
taken as per the procedure legislated by the
Parliament in respect of reopening/re-assessment i.e.,
proceedings under Section 148A of the Act.
27. In the present case, both the proceedings i.e., the
impugned proceedings under Section 148A of the Act,
as well as the consequential notices under Section 148
of the Act were issued by the local jurisdictional
officer and not in the prescribed faceless manner. The
order under Section 148A(d) of the Act and the notices
under Section 148 of the Act are issued on 29.04.2022,
i.e., after the "Faceless Jurisdiction of the Income Tax
Authorities Scheme, 2022." and the "eAssessment of
Income Escaping Assessment Scheme, 2022 were
introduced.
28 .........
29.........
30..........
31. It is well settled principle of law that where the
power is given to do certain things in certain way, the
thing has to be done in that way alone and no any
other manner which is otherwise not provided under
the law."
.
4. The Bombay High Court in a judgment dt.03.05.2024,
rendered in Writ Petition No. 1778 of 2023, titled as Hexaware
Technologies Ltd. Vs. Assistant Commissioner of Income Tax & others,
has also taken a similar view in paras 35 & 39, which read as under:
"35.........The Scheme dated 29th March 2022 in
paragraph 3 clearly provides that the issuance of notice
"shall be through automated allocation" which means
that the same is mandatory and is required to be
followed by the Department and does not give any
r discretion to the Department to choose whether to
follow it or not. That automated allocation is defined in
paragraph 2(b) of the Scheme to mean an algorithm for
randomised allocation of cases by using suitable
technological tools including artificial intelligence and
machine learning with a view to optimise the use of
resources. Therefore, it means that the case can be
allocated randomly to any officer who would then have
jurisdiction to issue the notice under Section 148 of the
Act. It is not the case of respondent no. 1 that
respondent no. 1 was the random officer who had been
allocated jurisdiction.
36 to 38............
39. With reference to the decision of the Hon'ble
Calcutta High Court in Triton Overseas Private Limited
(Supra), the Hon'ble Calcutta High Court has passed
the order without considering the Scheme dated 29th
March 2022 as the said Scheme is not referred to in the
order. Therefore, the said judgment cannot be treated as
a precedent or relied upon to decide the jurisdiction of
the Assessing Officer to issue notice under Section 148
of the Act. The Hon'ble Calcutta High Court has
referred to an Office Memorandum dated 20th February
2023 being F No. 370153/7/2023 TPL which has been
dealt with above. Therefore, no reliance can be placed
.
on the said Office Memorandum to justify that the JAO
has jurisdiction to issue notice under Section 148 of
the Act. Further the Hon'ble Telangana High Court in
the case of Kankanala Ravindra Reddy vs. Income Tax
Officer has held that in view of the provisions of Section
151A of the Act read with the Scheme dated 29th March,
2022 the notices issued by the JAOs are invalid and bad
in law. We are also of the same view."
5. Therefore, there shall be interim stay of all further
proceedings pursuant to Annexure P-2, notice issued to the petitioner,
till the next date of hearing.
6. List on 23rd September, 2024. Reply, if any, be filed in
the meanwhile.
( M. S. Ramachandra Rao )
Chief Justice
( Satyen Vaidya )
Judge
August 01, 2024.
(Gourav)
