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TMI Blog2022 (11) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... sue will arise repeatedly in many cases. Keeping in view the complexity of the legal issues involved and since we have doubted the correctness of the view expressed by a coordinate bench of this Court in RKKR Foundation [ 2021 (5) TMI 770 - DELHI HIGH COURT] wherein this Court had decided to exercise its jurisdiction in a similar matter where the jurisdictional assessing officer was located outside the NCT of Delhi, we are of the considered view that the aforesaid questions of law requires to be settled and decided by way of an authoritative pronouncement by a larger bench of this Court. - W.P.(C) 5546/2021 & CM APPL. 17180/2021, W.P.(C) 11337/2021 & CM APPL. 34908/2021, W.P.(C) 9307/2022 & CM APPL. 27888/2022 - - - Dated:- 17-11-2022 - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA Petitioner Through: Mr Ajay Vohra, Senior Advocate with Mr Aditya Vohra, Advocate. Mr. T.M. Shivakumar Ms. Priyanka Singh, Advocates. Mr. Rohit Jain, Mr. Aniket D. Agrawal, Advocates. Respondent Through: Mr. Abhishek Maratha, Senior Standing Counsel for Income Tax Department. Mr. Zoheb Hossain, Senior Standing Counsel with Mr Vipul Agrawal M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 23.04.2021. 3.3. The petitioner avers that, it learnt about the aforesaid show cause notice-cum-draft assessment order, via its counsel, only after the impugned assessment order, had been already passed, i.e., on 25.04.2021, as the father of the petitioner s counsel was admitted in hospital due to coronavirus and therefore, he could not access his e-mail. It is also the petitioner s case that, due to lockdown imposed in the State of Chhattisgarh on account of coronavirus, it was not possible to collate documents, and file the reply/ objections to the show cause notice cum draft assessment order. It is in these circumstances, according to the petitioner, a request for adjournment was filed with the respondent. 3.4. To be noted, the impugned assessment order as well as consequential notice of demand and notice for initiating penalty proceedings, are dated 24.04.2021. 4. Issue notice. Mr. Ruchir Bhatia accepts service on behalf of Mr. Abhishek Maratha, learned senior standing counsel for the respondent/revenue; who, we are told, could not join the proceedings, today, as he is bereaved. 5. List the matter on 03.06.2021. 5. Thereafter, on 03.06.2021, this Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceeding which is done and prepared in a coordinated manner by faceless assessment officer [ FAO ] in the regional assessment unit, with the assistance of the technical unit and verification unit. Finally, the Assessment Order is finalised, and communicated through the National Faceless Assessment Centre in Delhi. (iv) The scheme of the Act is such that the FAO who has been assigned the function of assessment can be located randomly anywhere in the country which is neither disclosed to the JAO nor to the Assessee. The single most important provision for determining which High Court should exercise jurisdiction by applying the doctrine of forum non conveniens in Section 144B(1)(xxxii) which reads as follows: the National Faceless Assessment Centre shall, after completion of assessment, transfer all the electronic records of the case to the Assessing Officer having jurisdiction over the said case for such action as may be required under the Act. (v) Therefore, if after completion of assessment, all the electronic records of the case are sent back by the NFAC to the JAO then it would be in the fitness of things for the High Court to consider that the records b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, which could potentially be contrary to any view held by the Chhattisgarh High Court. The principle of comity of courts will therefore require that this Hon ble Court should refuse to exercise its jurisdiction in favour of the Chhattisgarh High Court which would be the jurisdictional High Court over the ITAT Raipur, [which would be the final fact-finding authority in the Assessee s case till the time his PAN lies with the AO in Chhattisgarh]. (x) The Hon ble Supreme Court in Ambica Industries v. CCE (2007) 6 SCC 769 Para 38 envisaged an anomaly that may arise leading to a problem of forum shopping if the determination of the appellate forum was based on the situs of the tribunal. This would be no different if the situs of the NFAC which is in Delhi, is treated as determinative of the High Court to which appeals and writs would lie. (xi) This aspect has also weighed with this Court in the case of Chinteshwar Steel Pvt. Ltd. v. Union of India and Ors. 2013 SCC Online Del 4744 at Para 13. Additionally, this Court took the view that the Court within whose jurisdiction issues with local flavour arise should exercise jurisdiction and not otherwise. It is the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respecting similar causes, except where factual differences require a different approach. ( See: Para. 3 of [(Vishnu Traders v. State of Haryana and Ors.) 1995 Supp (1) SCC 461]. (xvii) For all the aforesaid reasons, the Ld Senior Standing Counsel contends that the present writ petition deserves to be dismissed on the ground of forum non conveniens. 8. Au-contraire, Mr. Ajay Vohra Ld. Senior Counsel contends that this Court has the necessary territorial jurisdiction to entertain the present writ petition, on the basis of the following submissions:- (i) The National Faceless Assessment Centre (NaFAC) was set up by the Central Board of Direct Taxes ( CBTD ) having its headquarters at New Delhi for the purpose of completion of faceless assessment under section 144B of the Act and it is NaFAC which performs all functions like (a) serving notice under section 143(2) on the assessee [section 144B (i) (i)]; (b) Response against the aforesaid notice to be sent to NaFAC [section 144B(1)(ii)]; (c) NaFAC is entrusted with jurisdiction power, inter alia, to examine the draft assessment order in accordance with the risk management strategy specified by the Board, including by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned) at applicable rates. The taxability of the Petitioner is not dependent upon the place from where the business is carried on and/ or where the registered office is situated and/ or the place where income is earned. Even otherwise, it is submitted that place of residence of the Petitioner or place from where business is carried on is not relevant for determining jurisdiction of the High Court under Article 226 of the Constitution. [Refer: Khajoor Singh vs Union of India: AIR 1961 SC 532 Rajendra Kumar Mishra vs Union of India: Civil Misc WP No.36612/1999 (Allahabad HC) (FB)] (c) The issue raised in the present writ petition is purely legal, viz., whether the impugned assessment order has been passed in violation of principles of natural justice and therefore, deserves to be quashed and/ or set aside. Additionally, the place where the registered office of the Petitioner is located or where business is carried on does not have any effect in the present case. There is, thus, no local flavour to the issue involved in the writ petition. [Refer: Jan Chetna vs Ministry of Environment Forests: WP(C) 8399/2009 dated 11.05.2021] (d) In the present case, the records of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee before the Gujrat High Court exercising jurisdiction over the JAO, the said High Court directed the petitioner assessee to include the NaFAC as necessary and proper party in the array of Respondents and serve the said NaFAC. [ Refer: Idex India (Pvt) Ltd vs Addl./Jt./Dy./Asstt. Commissioner of Income-tax/Income-tax Officer: [2022] 441 ITR 616 (Gujarat)] (vii) It is further submitted that the recent judgment of the Supreme Court in the case of Principal Commissioner of Income Tax-I, Chandigarh vs ABC Papers Ltd 2022 SCC Online SC 1036, rendered in the context of appellate jurisdiction of the High Courts under section 260A of the Act, has no application in the context of determining the writ jurisdiction of the High Courts. Even otherwise, in terms of the law laid down in the said decision, the jurisdiction of the High Court (for purposes of section 260A) would be determined basis the situs of the assessing officer passing the original assessment order, this Court has jurisdiction to entertain the writ petition where the original assessment order is passed by the NaFAC, Delhi. (viii) Further, it is submitted that the present petition came to be filed during the Covi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O, Chandigarh passed the impugned order on 30.05.2022. (vi) It is also relevant that the assessee, attended the video conference (VC) on 13.5.2022 at 11.30 AM through webex as per the link and password supplied by the JAO. (vii) Thus, the present challenge to the validity of the assessment order dated 30.05.2022 is a fresh cause of action. (viii) As the impugned assessment order has been passed by the JAO after considering the submissions of the Petitioner and after giving them the personal hearing through VC which was duly attended by the assessee, thus the Writ Petition is not maintainable and the assessee has an alternate remedy of appeal before the CIT Appeals. Reliance is placed upon the decision of Supreme Court in CIT vs Chhabil Dass Agarwal (2013) 357 ITR 357 (SC) (ix) In tax matters, the consistent view has been that the most convenient forum for an Assessee would be where his PAN is located. Recently, Gujarat High Court in the case of Bhavendra Hasmukhlal Patadia v. Union of India through Secretary in W.P.C 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India (Supra), Cement Workers Mandal vs. Global Cements Limited (HMP Cements Limited) (2019) 20 SCC 517 and Maharashtra Chess Association vs. Union of India (2020) 13 SCC 285. The Division Bench of this Court, however, ultimately opined that it would be in the fitness of things that the said issue be considered by the appropriate Bench of this Court then having the roster of taxation matters. (c) The writ petition was thereafter listed before the appropriate roster Bench on 17.05.2021, wherein, taking note of the objection to territorial jurisdiction raised by the Revenue, as recorded in the earlier order dated 12.05.2021, the Division Bench of this Court specifically held that the writ is maintainable. (d) In view of the aforesaid, the Division Bench of this Court in the case of the Petitioner itself, not only held that the writ is maintainable but also agreed to exercise writ jurisdiction in the matter. It is the submission of the Petitioner that considering the fact that this Court in the earlier round of proceedings arising out of the very same assessment proceedings had specifically chosen to exercise its discretion in favour of the Petitioner by entertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he territorial jurisdiction of this Court, (b) in the faceless assessment regime, it is the NaFAC, Delhi which exercises exclusive jurisdiction to make assessment (refer: section 144B of the Income Tax Act, 1961) and concurrent jurisdiction as an assessing officer and therefore, the locus/ situs of the JAO exercising jurisdiction in non-faceless regime cannot be the ground to hold the writ as non-maintainable; and (c) the cause of action in the present case has arisen, primarily/ partly, on account of non-compliance of the specific direction of this Court in the order dated 17.05.2021 passed in the earlier round of proceedings bearing WP(C) No.5277/2021 by NaFAC, Delhi. 13. We are of the considered view that at this stage, it would be apposite to refer to the judgment of this Court in the case of RKKR Foundation vs NFAC, [2021] 127 taxmann.com 643 (Delhi) wherein this Court while entertaining a writ petition in a similar situation observed as follows:- 4.2 Given the fact that the respondent no. 1 is located in the National Capital Territory of Delhi [in short Delhi ], Mr. Rai cannot, but accept, that this Court would have the jurisdiction in the matter, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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