Telangana High Court
Bhagyalakshmi Educational Society vs Income Tax Officer on 26 March, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.7645 OF 2024
ORDER:
(per Hon'ble Sri Justice P.SAM KOSHY)
Heard Mr.Dundu Manmohan, learned counsel for the
petitioner and Ms.Sundari R Pasupati, learned Senior
Standing Counsel for respondents. Perused the material
available on record.
2. The instant Writ Petition has been filed by the
petitioner under Article 226 of the Constitution of India
seeking for the following relief:
"to issue an appropriate writ order or direction more particularly one in
the nature of Writ of Mandamus declaring the Assessment Order dt 18
03 2024 passed by the 3rd respondent u/s 147 r w s 144B of the Income
tax Act for A Y 2015-16 vide DIN No ITBA/AST/S/147/2023
24/10628147991 which is passed as a consequence of the order passed
u/s 148Ad dt 04 04 2022 vide DIN No
ITBA/AST/F/148A/202223/10424679141 and the notice u/s 148 dt 04 04
2022 vide DIN No ITBA/AST/S/1481/2022 23/10424738251 issued by the
JA01st respondent instead of FAO3rd respondent as void illegal and
contrary to the provisions of Income tax Act and contrary to the
Principles of Natural Justice".
3. One of the contentions that the petitioner has raised
in the present Writ Petition is that under the amended
provisions of the Act which came into effect from
01.04.2021, the respondents, while proceeding under
Section 148 of the Act, were required to issue notice under
PSK,J & NTR,J
W.P.No.7645 OF 2024
Section 148A and provide an opportunity of hearing to the
assessee. As per the amended provision of law, the
proceedings to be drawn are also in a faceless manner.
4. Whereas, learned counsel for the petitioner
contended that, in the instant case, reopening has been
initiated by the Jurisdictional Assessing Officer. In support
of his contention, he relied upon the recent judgment
rendered by this very Bench in WP.No.25903 of 2022 &
batch, dated 14.09.2023 wherein this Court disposed of the
batch of writ petitions to the limited extent.
5. On the other hand, learned Standing Counsel for the
respondent-Department does not dispute that the said
objection was decided in the aforesaid batch of Writ
Petitions. However, he further contended that apart from
the aforesaid objection, there have been other various
objections also which the petitioner has raised in the writ
petition.
6. So far as this contention of the learned counsel for
the respondent-Department is concerned, this Bench, while
disposing of said batch of writ petitions, had taken note of
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W.P.No.7645 OF 2024
the same at paragraph Nos.37 & 38 which are reproduced
herein under:
"37. The preliminary objection raised by the petitioner
is sustained and all these writ petitions stands allowed
on this very jurisdictional issue. Since the impugned
notices and orders are getting quashed on the point of
jurisdiction, we are not inclined to proceed further and
decide the other issues raised by the petitioner which
stands reserved to be raised and contended in an
appropriate proceedings."
"38. Since the Hon'ble Supreme Court had, in the case
of Ashish Agarwal, supra, as a one-time measure
exercising the powers under Article 142 of the
Constitution of India, permitted the Revenue to proceed
under the substituted provisions, and this Court
allowing the petitions only on the procedural flaw, the
right conferred on the Revenue would remain reserved
to proceed further if they so want from the stage of the
order of the Supreme Court in the case of Ashish
Agarwal, supra."
7. In view of the same, we are inclined to allow the
present writ petition also on similar terms. Accordingly, the
present Writ Petition stands allowed on the objection of the
petitioner that the proceedings have not been drawn in
accordance with the amended provision but under the
un-amended provision which is otherwise not sustainable.
8. As has been held by this Bench in the aforesaid batch
matters, the rights of the parties would stand reserved as is
envisaged at paragraph Nos.37 & 38 of the said order
passed in the batch of writ petitions.
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W.P.No.7645 OF 2024
9. Further, from the perusal of the impugned order
particularly the contents of paragraph No.3.3, wherein the
assessing officer has referred to catena of judgments of the
jurisdictional High Court i.e, the High Court for the State of
Telangana, in various writ petitions under similar
circumstances which have been allowed. Inspite of this fact
being reflected in the impugned order, we fail to
understand as to how still the authorities concerned
proceeds and issues notices under Section 148 which
otherwise in terms of the decision of the Division Bench of
this Court in catena of decisions could have been issued
only in a faceless manner. This fact is one which needs to
be considered at the highest level, particularly the 2nd
respondent or any other higher authorities in the
Department. Learned counsel for the Department is
instructed to appraise the 2nd respondent in respect of the
observation made in the instant case for.
10. With the above observation, this writ petition stands
allowed. No order as to costs.
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W.P.No.7645 OF 2024
Consequently, miscellaneous petitions pending, if
any, shall stand closed.
____________________
P.SAM KOSHY, J
____________________
N. TUKARAMJI, J
Date: 26.03.2024
AQS/SA
PSK,J & NTR,J
W.P.No.7645 OF 2024
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.7645 OF 2024
(per Hon'ble Sri Justice P.SAM KOSHY)
26.03.2024
Aqs/sa
