9911796707
TMI Blog2024 (9) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... aracter of subordinate legislation, which governs the conduct of proceedings under Section 148A as well as Section 148 of the Act. In view of the explicit declaration of the law in Hexaware [ 2024 (5) TMI 302 - BOMBAY HIGH COURT] the grievance of the Petitioner-Assessee insofar as it relates to an invalid issuance of a notice is sustainable and consequently, the very manner in which the proceedings have been initiated, vitiates the proceedings. Decided in favour of assessee. - G. S. KULKARNI SOMASEKHAR SUNDARESAN, JJ. For the Petitioner : Mr. Jeet Kamdar i/b. Mr. Atul K. Jasani. For the Respondents : Mr. N.C. Mohanty. PC: 1. Rule. Rule made returnable forthwith. Learned Counsel for the Respondents waives service. By consent of the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 148 of the Act, the Respondent-Revenue would need to be compliant with Section 151A, which has been interpreted and analysed in detail by a Division Bench of this Court in the case of Hexaware Technologies Limited Vs. Assistant Commissioner of Income Tax 4 Ors. (2024) 464 ITR 430 ( Hexaware ). The Division Bench has clearly declared the law as follows : 35. Further, in our view, there is no question of concurrent jurisdiction of the JAO and the FAO for issuance of notice under Section 148 of the Act or even for passing assessment or reassessment order. When specific jurisdiction has been assigned to either the JAO or the FAO in the Scheme dated 29th March, 2022, then it is to the exclusion of the other. To take any other view in the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Act and Section 144B of the Act does not refer to issuance of notice under Section 148 of the Act and hence, the notice cannot be issued by the FAO as per the said Scheme, we express our view as follows:- Section 151A of the Act itself contemplates formulation of Scheme for both assessment, reassessment or recomputation under Section 147 as well as for issuance of notice under Section 148 of the Act. Therefore, the Scheme framed by the CBDT, which covers both the aforesaid aspect of the provisions of Section 151A of the Act cannot be said to be applicable only for one aspect, i.e., proceedings post the issue of notice under Section 148 of the Act being assessment, reassessment or recomputation under Section 147 of the Act and inapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to take action against an assessee without following the due process of law, the said action itself results in a prejudice to assessee. Therefore, there is no question of petitioner having to prove further prejudice before arguing the invalidity of the notice. [Emphasis Supplied] 6. In the present case, it is apparent that the Respondent-Revenue has not complied with the Scheme notified by the Central Government pursuant to Section 151A (2) of the Act. The Scheme has also been tabled before the Parliament and is in the character of subordinate legislation, which governs the conduct of proceedings under Section 148A as well as Section 148 of the Act. In view of the explicit declaration of the law in Hexaware, the grievance of the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law as laid down by this Court in Hexaware (supra) as also considering the observations of this Court in Kairos Properties Pvt. Ltd. (supra), the petition would be required to be allowed. 9. In the light of the above discussion, and as there is no dispute that the JAO had no jurisdiction to issue the impugned notice, the Writ Petition is accordingly allowed in terms of prayer clause (a) which reads thus : a) that this Hon ble Court be pleased to issue a Writ of Certiorari or writ in the nature of Certiorari or any other Writ, order or direction under Article 226 of the Constitution of India, calling for the records of the petitioner s case and after examining the legality and validity thereof quash, cancel and set aside the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
