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TMI Blog2024 (8) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... , CWP-13874-2023(O&M), CWP-13875-2023(O&M), CWP-13878-2023(O&M), CWP-13879-2023(O&M), - - - Income Tax - Faceless assessment scheme - Jurisdiction of the Jurisdictional Assessing Officer (JAO) to issue notice u/s 148 - admittedly notice was issued by the JAO for re-assessment - HELD THAT:- Principal Chief Commissioner or the Principal Director General, as the case may be, transfer the case to the Assessing Officer having jurisdiction over such case i.e. JAO. Thus, the power of transfer to the JAO is although available but it has to be exercised only in a particular case considering the facts and circumstances therein and not by way of general order as passed vide letter dated 19.01.2024. Circular or instructions by the Board could not have been issued to override statutory provisions or to make them otiose or obsolete. Legislative enactments having financial implications are required to be followed strictly and mandatorily. By exercising the powers contained in Sections 119 and 120 of the Act, 1961 as well as Section 144B (7 8), the authorities cannot be allowed to usurp the legal provisions to their own satisfaction and convenience causing hardship to the assessees Notices issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nissing Through Its Partner, Avtar Singh, Alfanar Energy Pvt. Ltd., Guru Nanak Khalsa Sr. Sec. School, Pardip Singh Sandhu, M/S Jld Estates Pvt Ltd, Mukesh Kumar Garg, D.M. College Of Education, Ashwani Kumar Aggarwal, Sahi Sialkot Retail Outlet And Filling Station, Balinder Kaur, Didar Singh Sekhon, Naveen Timber Private Ltd, Baldev Singh, Sushma Rani, Simerjit Kaur Sandhu, Harmeet Singh, Ruby, Roma Gupta, Suchetan Bhalla, And Others Versus Union Of India And Others, National Faceless Assessment Centre Delhi And Another, Assistant Commissioner Of Income Tax Circle-I, Income Tax Officer And Another, Central Board Of Direct Taxes And Ors. Present: For the petitioner(s) : Mr. Sanjay Bansal, Sr. Advocate with Mr. Gurdeep Singh, Advocate, Ms. Radhika Suri, Sr. Advocate with Mr. Abhinav Narang, Advocate, Mr. Akshay Bhan, Sr. Advocate with Mr. Shantanu Bansal, Advocate and Mr. Yugank Goyal, Advocate Mr. Sandeep Goyal, Advocate, Mr. Nikhil Goyal, Advocate, Mr. Rana Gurtej Singh, Advocate, Mr. Vaibhav Sharma, Advocate Mr. Adarsh Dubey, Advocate, Mr. Sandeep Wadhawan, Advocate, Mr. Abhishak Sharma, Advocate, Mr. Vishal Gupta, Advocate, Mr. Viren Sharma, Advocate, Mr. Alok Mittal, Advocate M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3133-2023, CWP-13147-2023, CWP-23292-2023, CWP-23293-2023, CWP-23324-2023 and CWP-23342-2023 For the Respondents : Mr. Amanpreet (A.P.) Singh, Sr. Standing Counsel. For the Income Tax Department : Mr. Sourabh Kapoor, Sr. Standing Counsel with Ms. Pridhi Sandhu, Junior Standing Counsel in CWP-13679-2024, CWP-13697-2024, CWP14345-2024, CWP-9662-2024 and CWP-12743-2024. For the Respondents : Mr. Ranvijay Singh, Sr. Standing Counsel in CWP-12714, 22645, 12770, 12888, 12916 of 2023, 9422, 9252, 9264, 9570, 4211, 10978, 10568, 11232, 11659, 11661, 12370, 12371, 11949, 12360 and 8974 of 2024. SANJEEV PRAKASH SHARMA, J. 1. These bunch of writ petitions raise common question of law that as to whether the Jurisdictional Assessing Officer (hereinafter referred to as the JAO ) is empowered to issue notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the Act, 1961 ), after the new regime of faceless assessment has been brought into force by the amendment made under Section 148 of the Act, 1961. 2. In the bunch of these writ petition, admittedly notice was issued by the JAO for re-assessment after 01.04.2021 and further approval order passed under Section 151 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after considering the scope of the scheme as notified in 2022, the Government of India had issued the office memorandum. He submits that the scope and power as available under the aforesaid provisions as also under Section 120 of the Act, 1961, which expresses jurisdiction of income tax authorities to issue instructions, has not been considered by the Coordinate Bench while deciding the cases (supra) and this Court ought to examine the same. 8. Learned counsel for the petitioners on the other hand submit that the very purpose of providing faceless assessment scheme, would stand negated if the respondents are allowed to use the power available under Sections 119 and 120 of the Act, 1961, to issue circulars or orders resulting in the amendments made in Sections 148 and 144B of the Act, 1961, as redundant. It is submitted that the powers contained in Section 119 or under Section 120B will have to be inconformity with the scheme of the Act. 9. We have considered the submissions. 10. The Coordinate Bench after noticing the judgments passed by the Division Bench of the Telengana, Calcutta, Bombay and Guwahati High Courts passed the order in CWP-15745-2024 and CWP-15791-2024. This Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structions to subordinate authorities:- (1) The Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board. Provided that no such orders, instructions or directions shall be issued. (a) so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner:- (b) so as to interfere with the discretion of the Commissioner (Appeals) in the exercise of his appellate functions. (2) Without prejudice to the generality of the foregoing power. (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 3[115P, 115S, 115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK,] [139,] 143, 144, 147, 148, 154, 155[158BFA], [sub-section (1A) of section 201, sections 210, 211 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the powers and functions in respect of any area or persons or classes of persons or incomes or classes of income or cases or classes of cases; and, where such powers and functions are exercised and performed concurrently by the Assessing Officers of different classes, any authority lower in rank amongst them shall exercise the powers and perform the functions as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such higher authority and any provision of this Act requiring approval or sanction of any such authority shall not apply. (6) Notwithstanding anything contained in any direction or order issued under this section, or in section 124, the Board may, by notification in the Official Gazette, direct that for the purpose of furnishing of the return of income or the doing of any other act or thing under this Act or any rule made thereunder by any person or class of persons, the income-tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such authority as may be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction over such case, with the prior approval of the Board. 15. Thus it is in the aforesaid two contingencies alone as provided under sub-Sections 7 and 8 that the Principal Chief Commissioner or the Principal Director General, as the case may be, transfer the case to the Assessing Officer having jurisdiction over such case i.e. JAO. Thus, the power of transfer to the JAO is although available but it has to be exercised only in a particular case considering the facts and circumstances therein and not by way of general order as passed vide letter dated 19.01.2024. 16. We are in agreement with the view taken by the Coordinate Bench and hold that such circular or instructions by the Board could not have been issued to override statutory provisions or to make them otiose or obsolete. Legislative enactments having financial implications are required to be followed strictly and mandatorily. By exercising the powers contained in Sections 119 and 120 of the Act, 1961 as well as Section 144B (7 8), the authorities cannot be allowed to usurp the legal provisions to their own satisfaction and convenience causing hardship to the assessees. It also leaves confusion in the minds of the taxp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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