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TMI Blog2023 (6) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 127(2) of the Act that respondent no.1 was also available on the Income Tax Portal and a copy of the same was also attached to respondent no.3; and the specific plea was raised that notice dt. 22.03.2022 under Section 148 A (b) of the Act issued by respondent no.3 to the petitioner, was without jurisdiction. Ignoring the same, the impugned notice under Section 148 of the Act was issued on 01.04.2022 by respondent no.3. The fact that respondent no.3 had issued notice dt. 22.03.2022 under Section 148A(b) of the Act to the petitioner, would not be relevant because the said provision i.e., Section 148A of the Act deals with conduct of enquiry before issuance of notice under Section 148 of the Act, as rightly contended by the learned counsel for the petitioner. Had the transfer of jurisdiction happened after the issuance of notice of Sec.148 of the Act, the situation would have been otherwise. In the very order dt. 15.03.2022 passed under Section 127(2) of the Act it was mentioned specifically that respondent no.3 should get the PAN as well as relevant records transferred to respondent no.4. Without obeying the said directive of respondent no.1 and without transferring the PAN of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertained and the petitioner has an effective alternative remedy of filing of an appeal, in case he is aggrieved by the assessment order, which may ultimately be passed. 4. It is however admitted that jurisdiction of respondent no.3 was transferred, vide order dt. 15.03.2022 passed under Section 127(2) of the Act to respondent no.4, but the copy of the same was received in the office of respondent no.3 only on 30.03.2022 and till then the fact of transfer of jurisdiction was not known to him. It is alleged that if the assessee had any grievance, he should have availed the remedy, under Section 124(2) of the Act. 5. It is further contended that respondent no.3 had issued a show cause notice, under Section 148A(b) of the Act on 22.03.2022 itself, inviting objections of the assessee latest by 29.03.2022; that the assessee filed his response on the Portal on 29.03.2022; then respondent no.3 passed an order, under Section 148A(d) of the Act on 01.04.2022. It is contended that since respondent no.3 had issued notice on 22.03.2022 itself and the information as to transfer of jurisdiction under Section 127 of the Act came to his knowledge only on 30.03.2022, sometime thereafter and sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 148 of the Act was issued on 01.04.2022, two days later. 10. It is contended that the issuance of show cause notice under Section 148A(b) of the Act on 22.03.2022 has no relevance, because Section 148A of the Act, merely provides the procedure for conducting enquiry, providing opportunity and passing an order prior to issuance of notice under Section 148 of the Act; and the petitioner in his reply dt. 29.03.2022 had brought to the knowledge of respondent no.3 that the jurisdiction to assess, had been transferred to respondent No.4 and that was also uploaded on the Portal of the Income Tax Department. 11. It is also pointed out that duty to transfer the PAN of the petitioner to ITO Delhi was that on respondent no.3 and not on respondent no.1, since as per law, such transfer responsibility is on the Destination Assessing Officer, i.e., the Officer to whom PAN is to be transferred and not the Source Assessing Officer in whose jurisdiction the PAN presently lies. 12. It is also stated that the transfer of PAN is electronically done on ITBA Portal, which was started by the Income Tax Department, as a part of Government's E-governance. It is, therefore, contended that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 supra). In Jeans Knit Pvt. Ltd (1 supra) the Supreme Court held that challenge to notices under Sec.148 of the Act by way of a Writ Petition is maintainable and the decision in Chhabil Dass Agarwal (5 supra) would not apply. It held: "2. We find that the High Courts in all these cases have dismissed1, 2 the writ petitions preferred by the appellant/assessee herein challenging the issuance of notice under Section 148 of the Income Tax Act, 1961 and the reasons which were recorded by the Assessing Officer for reopening the assessment. These writ petitions are dismissed by the High Courts as not maintainable. The aforesaid view taken is contrary to the law laid down by this Court in Calcutta Discount Co. Ltd. v. CIT( 4 supra). We, thus, set aside the impugned judgments4 and remit the cases to the respective High Courts to decide the writ petitions on merits. 3. We may make it clear that this Court has not made any observations on the merits of the cases i.e. the contentions which are raised by the appellant challenging the move of the Income Tax Authorities to reopen the assessment. Each case shall be examined on its own merits keeping in view the scope of judicial review while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer of jurisdiction happened after the issuance of notice of Sec.148 of the Act, the situation would have been otherwise. 25. Moreover, in the very order dt. 15.03.2022 passed under Section 127(2) of the Act it was mentioned specifically that respondent no.3 should get the PAN as well as relevant records transferred to respondent no.4. Without obeying the said directive of respondent no.1 and without transferring the PAN of petitioner and the relevant records to respondent no.4, respondent no.3 cannot take advantage of his own wrong and take the pretext that since the transfer of the PAN had not happened, he has the jurisdiction to issue the notice under Section 148 of the Act also. 26. In any event, no prejudice is caused to the respondents since the limitation for initiating action under Section 148 of the Act, in view of the amended Section 149 of the Act, is ten years, if the alleged income escaping assessment is more than Rs.50.00 lacs and since such period for the assessment year 2015-16 would only end on 31.03.2026. 27. Accordingly, the Writ petition is allowed; the notice dt. 01.04.2022 (Annexure P-12) issued under Section 148 of the Act by respondent no.3 is qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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