Himachal Pradesh High Court
Anil Kumar Dogra vs . Income Tax Officer & Others on 4 September, 2024
Author: Mamidanna Satya Ratna Sri Ramachandra Rao
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao
.
Anil Kumar Dogra Vs. Income Tax Officer & others
CWP No. 9303 of 2024
04.09.2024 Present: Mr. Ashwani K. Lal, Advocate, for the petitioner.
Mr. Neeraj Sharma and Mr. Ishaan Kashyap,
Advocates, for the respondents.
CWP No. 9303 of 2024 & CMP No. 15608 of 2024
Notice to the respondents.
r Mr. Ishaan Kashyap,
Advocate, accepts notice for the respondents.
2. Prima-facie, we are of the view that the impugned
notice, Annexure P-1 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 1 st 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 Office 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 re-
assessing 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 "e-
Assessment 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 paragarph 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 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 23023 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-1, notice issued to the
petitioner, till the next date of hearing.
6. List on 02.12.2024. Reply, if any, be filed in the
meanwhile.
(M.S. Ramachandra Rao)
Chief Justice.
(Satyen Vaidya)
Judge
September 04, 2024
(hemlata)
