M/S Tushti Trading Company ... vs Central Board Of Direct Taxes ...
2023 Latest Caselaw 2062 MP

                                                      1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                              HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                           ON THE 6 th OF FEBRUARY, 2023
                                          WRIT PETITION No. 2779 of 2023

                          BETWEEN:-
                          M/S TUSHTI TRADING COMPANY LIMITED THROUGH
                          MANOJ GARG S/O SHRI JAGDISH KUMAR GARG R/O
                          4/54, PRESS COMPLEX A.B. ROAD, INDORE (MADHYA
                          PRADESH)

                                                                            .....PETITIONER
                          (SHRI SUMIT NEEMA, SR. ADVOCATE WITH SHRI GAGAN TIWARI,
                          LEARNED COUNSEL FOR THE PETITIONER .
                          )

                          AND
                          1.    CENTRAL BOARD OF DIRECT TAXES THROUGH
                                I T S CHAIRMAN     MINISTRY OF FINANCE
                                DEPARTMENT OF REVENUE NORTH BLOCK,
                                NEW DELHI - 110002

                          2.    PRINCIPAL CHIEF COMMISSIONER OF INCOME
                                TAX 1 INCOME TAX DEPARTMENT AAYAKAR
                                BHAWAN, 48, ARERA HILLS, HOSHANGABAD
                                ROAD, BHOPAL (MADHYA PRADESH)

                          3.    PRINCIPAL COMMISSIONER OF INCOME TAX 1
                                INCOME TAX DEPARTMENT AAYAKAR BHAWAN,
                                CGO COMPLEX, INDORE (MADHYA PRADESH)

                          4.    THE ASSISTANT COMMISSIONER OF INCOME
                                TAX 4 (1) ROOM NOA. 109, I FLOOR, AAYKAR
                                BHAWAN, 48, ARERA HILLS, HOSHANGABAD
                                ROAD, BHOPAL (MADHYA PRADESH)

                          5.    NATIONAL FACELESS ASSESSMENT CENTRE,
                                DELHI (EARLIER NATIONAL E ASSESSMENT
                                CENTRE,         DELHI)        ASSESSMENT
                                UNIT/VERIFICATION UNIT / TECHNICAL UNIT /
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 2/8/2023
6:08:36 PM
                                                      2
                                REVIEW UNIT INCOME TAX DEPARTMENT TAX,
                                2ND FLOOR, JAWAHARLAL NEHRU STADIUM
                                NEW DELHI (DELHI)

                                                                                         .....RESPONDENTS
                          (MS VEENA MANDLIK, LEARNED COUNSEL FOR THE RESPONDENT .
                          )



                                This petition coming on for admission this day, JUSTICE SUSHRUT
                          ARVIND DHARMADHIKARI passed the following:
                                                             ORDER

Heard on the question of admission and interim relief. The petitioner has challenged the impugned order dated 31.03.2022 u/S 148A(d) of the Income Tax Act, 1961(for short 'the Act ' hereinafter), re-

assessment notice dated 31.03.2022 u/S 148 of the Act and notice dated 17.03.2022 u/S 148A(b) of the Act passed by the respondent no.4.

2. The brief facts of the case are that the impugned show cause notice dated 17.03.2022 u/S 148A(b) of the Act by way of which re-assessment proceeding is initiated u/S 147/148 of the Act is absolutely bereft of any information which could effectively show that the income chargeable to tax for the assessment year 2018-19 has escaped assessment within the meaning of Section 147 of the Act and secondly, that the notice u/S 148A(d) of the Act do not show any live link between any information qua formation of belief, therefore the impugned re-assessment is illegal, perverse and contrary to the Department circular F. No. 299/10/2022 Dir(Inv.III)/611 dated 01.08.2022 and 22.08.2022.

3. Learned counsel for the petitioner relied on the judgment of the Apex Court in the case of Red Chilli International Sales Vs. Income Tax Officer & Anr reported in 2023 Livelaw (SC) 16 to contend that the writ petition can Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/8/2023 6:08:36 PM

be entertained to examine if conditions for issuance of notice u/S 148 of the Act have been satisfied.

4. Learned counsel for the Income Tax Department Ms. Veena Mandlik raised preliminary objections as to the maintainability of the writ petition on the ground of territorial jurisdiction on the following grounds:

i) Since the PAN A.O. was located outside the territorial jurisdiction of the Indore Bench, the entire assessment , re-assessment and adjudication has been done by the ACIT/DCIT, Bhopal Commissionerate, Bhopal, therefore this petition is not maintainable before this Bench. However, petitioner shall have liberty to approach the appropriate Bench i.e. the main Seat at Jabalpur.

II) The situs of the jurisdictional Assessing Officer/PAN AO would be determinative of the jurisdiction of the High Court for the purpose of entertaining writ petitions under Article 226 of the Constitution of India.

III) Applying the doctrine of forum non conveniens, this Court should reject the present writ petition for the reason that the assessee having chosen not to change his PAN jurisdiction, which he is otherwise entitled under the Act, it can be presumed that his PAN jurisdiction is convenient to him as it is convenient for the revenue.

IV) The faceless assessment regime does not dilute in any manner, the principle that the situs of the PAN AO determines the jurisdiction of the High

Court. On the contrary, an analysis of Section 144B(i), (iv),(vi),(vii), (xiv) & (xvi) would demonstrate that the National Faceless Assessment Centre is only a central authority, which issues notices to facilitate the assessment proceedings which is done and prepared in a coordinated manner by faceless assessment officer (FAO) in the original assessment unit with the assistance of the technical unit and verification unit. Finally the assessment order is finalized and Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/8/2023 6:08:36 PM

communicated through National Faceless Assessment Centre in Delhi.

V) In tax matters, a consistent view has been that the most convenient manner for the assessee is where is his PAN is located. This is for the reason that he has a choice to even relocate his PAN by making suitable application under Section 139A(5)(d) r/W applicable rules and failing to do so leads to a presumption that the location of the PAN/situs of the JAO is convenient to the assessee and he has estopped from arguing otherwise at this stage.

5. Gujarat High Court in the case of Bhavendra Hasmukhlal Patadia Vs. Union of India Through Secretary in W.P.C No. 4820 of 2022 vide order dated 27.04.2022 refused to entertain the writ petition filed by the assessee as the PAN of the assessee was lying in Cuttuck, Orrisa and the order was also passed by the Officer in Cuttuck.

6. In the present case, it is seen that the return of income for the assessment year 2018-19 alongwith computation of income has been filled up at Bhopal, notice issued u/S 148A(b) of the Act dated 07.03.2022, copy of the order dated 31.03.2022 u/S 148A(d) of the Act as also the notice u/S 148 of the Act have been issued by the DCIT/ACIT (1), Bhopal. Thus, just because one or two notice/letters came to be issued to the petitioner at his address at Indore, by itself, will not confer jurisdiction to the Indore Bench of the High Court of M.P, more particularly, when the petitioner is being assessed to tax consistently at Bhopal. The petitioner has a PAN card issued from Bhopal. The impugned notices u/S 148 of the Act, and the final assessment order have also been issued from Bhopal.

7 . The judgment passed in the case of Red Chilli International Sales(supra) relied upon by the learned counsel for the petitioner would not be

Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/8/2023 6:08:36 PM

of any assistance to the petitioner, since the question of alternative remedy was examined, but in the present case, the objection with regard to question of territorial jurisdiction has been raised.

8. In view whereof, we are not inclined to entertain this writ petition and relegate the petitioner to file appropriate writ petition before the Principal Seat at Jabalpur.

9. Accordingly, this petition is disposed of with the aforesaid liberty.

                               (S. A. DHARMADHIKARI)                        (PRAKASH CHANDRA GUPTA)
                                        JUDGE                                        JUDGE
                          sh




Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 2/8/2023
6:08:36 PM