Ram Prasad Kesarwani vs Principal Commissioner of Income Tax Gorakhpur and 2 Others

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Court No. - 2 Case :- WRIT TAX No. - 743 of 2025 Petitioner :- Ram Prasad Kesarwani Respondent :- Principal Commissioner Of Income Tax Gorakhpur And 2 Others Counsel for Petitioner :- Pradeep Agrawal,Amar Mani Tiwari Counsel for Respondent :- Kushagra Dikshit,Neerav Chitravanshi

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Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Brij Raj Singh,J.

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Heard learned counsel for the petitioner, learned Standing Counsel for the State and Shri Kushagra Dikshit and Shri Neerav Chitravanshi, learned counsel for opposite party no. 3 and perused the record.

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This writ petition has been filed with the following main prayers:-

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"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned notice u/s 148 issued by the opposite party no.2, the jurisdictional Assessing Officer for the A.Y.2020-21 on 27.03.2024 as contained in Annexure No.1 to this writ petition after summoning the records ;

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(ii). issue a writ, order or direction in the nature of certiorari quashing the consequential order passed u/s 147 r/w section 144 of the Act by the opposite party no.3 on 20.02.2025 on the basis of notice u/s 148 issued by the jurisdictional Assessing Authority (IAO) on 27.03.2024 ;

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(iii). issue a writ, order or direction in the nature of writ of mandamus directing the opposite parties not to proceed with the recovery issued for the A.Y. 2020-21 in pursuance of the notice u/s 148 and the consequential order dated 20.02.2025 for the A.Y. 2020-21 during the pendency of this writ petition before this Hon'ble Court."

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Learned counsel for the petitioner says that the notice issued to the petitioner under Section 148 by respondent no. 2, the Jurisdictional Assessing Officer and such issuance of notice has been held to be bad in view of the Scheme under Section 151-A of the Income Tax Act by the Telangana High Court in Writ Petition No.13353 ; Writ Petition No.16141 and Writ Petition No.16877 of 2024 decided by a common judgment on 24.07.2024. It has been submitted that the judgment dated 24.07.2024 had placed reliance upon judgment of Bombay High Court in Writ Petition No.1778 of 2023, 'Hexaware Technologies Limited vs. Assistant Commissioner of Income Tax and others. '

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The Department approached the Supreme Court by filing Special Leave Petition against the judgement and order dated 29.08.2024 passed by Telangana High Court. The Special Leave Petition has been dismissed by the Supreme Court on 16.07.2025. The view of the Telangana High Court was affirmed by the Supreme Court.

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It has also been argued that similar writ petitions have been filed before this Court by other assesses also and have been entertained by this Court has passed orders that although the assessee may participate in the assessment, no final orders could be passed.

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Shri Neerav Chitravanshi, on the basis of instructions and on the basis of pleadings in the writ petition says that in the case of other assesses, whose Writ Petitions have been entertained and are pending, no final orders were passed. They have approached this Court only against issuance of notice, in the case of petitioner, final orders have been passed on 20.02.2025 and the petitioner has also challenged the final order which can be challenged by filing a statutory appeal under Section 246-A of Income Tax Act.

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It has also been submitted that the views of different High Courts are divergent in nature, some High Courts like the Telangana High Court and the Bombay High Court have ruled in favour of the assessee whereas the Delhi High Court and the Madras High Court have ruled against the assessee saying that the Jurisdictional Assessing Officer can issue such notice under Section 148 of I.T. Act, only the assessment has to be done by the faceless Assessing Authority. He has pointed out that the Special Leave Petition filed by the Income Tax Department against the original order in the case of The Income Tax Officer vs. Kankanala Reddy is still pending before the Supreme Court. The case status of Diary No.2737 of 2024 filed on 17.01.2024 and SLP (C) No.003574 of 2024 registered on 09.04.2025 has been placed before us.

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Let a counter affidavit be filed by the respondents to this writ petition within a period of four weeks.

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Learned counsel for the petitioner has pressed for stay of recovery proceedings which have been initiated after final assessment order dated 20.02.2025 saying that the initial notice issued to the petitioner under Section 148 is without jurisdiction and therefore, the entire proceedings taken become non-est.

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We direct the petitioner to deposit Rs.1,76,00,000/(One Crore and Seventy Six Lacs Rupees) in a Fixed Deposit Account in a Nationalised Bank for a period of 444 Days which the petitioner shall not take out till further orders of this Court, and if such Fixed Deposit is made by the petitioner and documentary evidence is filed before this

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Court within four weeks from today i.e., latest by 12.09.2025 which is the next date fixed in the matter, the recovery proceedings initiated in pursuance of the Final Assessment Order dated 20.02.2025 shall be kept in abeyance.

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List this matter on 12.09.2025.

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Order Date :- 13.8.2025 Pks

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Digitally signed by :- POOJA SETH High Court of Judicature at Allahabad, Lucknow Bench

Ram Prasad Kesarwani v. Principal Commissioner of Income Tax Gorakhpur and 2 Others

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Ram Prasad Kesarwani v. Principal Commissioner of Income Tax Gorakhpur and 2 Others

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