Allowed

Mr. Saibaba Elakurthi v. The Income Tax Officer

Telangana HC6 Nov 2023WP/25485/2022

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging an Income Tax assessment order dated 30.04.2022 passed under Section 148(d) of the Act. The petitioners contended that the proceedings were initiated without issuing a mandatory notice under Section 148A as required by amended provisions. The Court quashed the order on jurisdictional grounds.

What did the court decide?

The writ petition was allowed on the objection that proceedings were not drawn in accordance with amended provisions; the assessment order was quashed as void ab-initio.

Mr. Saibaba Elakurthi Vs The Income Tax Officer — Writ and Judicial Review | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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(Special Original Jurisdiction)

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MONDAY, THE SIXTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE P. SAM KOSHY AND THE HONOURABLE SRI JUSTICE N. TUKARAMJI

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WRIT PETITION NO: 25485 OF 2022

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Between:

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Mr. Saibaba Elakurthi, S/o Mr. Venkataramaiah Elakurthi, Aged 59 years, Occ: Business, Fi/o^{'l -39/1} , Dindi - 508 258, Nalgonda District Telangana.

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..PETITIONER

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AND

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The lncome Tax Officer, Ward - 1, Nalgonda, lncome Tax Office, Near Rail Under Bridge, Nalgonda^- 508 001 , Telangana.

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The Principal Commissioner of lncome Tax^{- 1} , Hyderabad, Room No. 71 1, 7th Floor, lT Towers, AC Guards, [/asab Tank, Hyderabad - 500 004, Telangana.

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The Principal Chief Commissioner of lncome Tax, Andhra Pradesh and Telangana, Hyderabad, Room No.922,91h Floor, B Block, lT Towers, 10-2-3, A.C. Guards, Hyderabad^- 500 004, Telangana.

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The Additional Commissioner of lncome Tax, Range^- 3, Hyderabad, Signature Towers, Sy. No.6(P) of Kondapur, Sy. No.37(P) of Kothaguda, Ofposite Botanical Gardens, Serilingampally^{tulandal,RangaReddy} District, Hyderabad - 500 084, Telangana.

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...RESPONDENTS

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Petition under Article 226 oI lhe Constitution of lndia^praying that in the circumstances stated in the affidavit filed therewith,^{the High} Court may^be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Direction, declaring. a. the order dated 30.04.2022,^{passed u/s 148A(d)of the} Act, vide DIN and Notice No. ITBA/AST/F/'148A12022-2311042918433(1),^{by the} 1st Respondent, for the Assessment Yea( 2015^{- 16, and b. the notice dated} 30.O4.2O22, issued by the 1st Respondent,^{u/s 148 of the lncome Tax Act, 1961,} vide DIN and Notice. ITBA/AST/S/148 112022-2311042918531(1), for^the Assessment Year 2015 - 16, as arbitrary, illegal,^bad in law,^{void-ab-initio,} violative of the principles of natural^justice apart from^being violative of Articles 14, 19(1Xg) and 265 of the Constitution of^lndia and^{Sec.'148Aof the lncome} Tax Act, 1961 , and consequently set aside the same^{in the interests of justice.}

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lA NO:^'t OF 2022

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings, including any recovery, pursuant to the notice dated 30.04-2022, issued by the 1st Respondent, u/s^'148 of the lncome Tax Act, 196'l , vide DIN and Notice. ITBA/AST/S/148_112022-2311042918531(1), for the Assessment Year 2015 - 16, pending disposal of the above Writ Petition;

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Counsel for the Petitioner: SR! A.V.A. SIVA KARTIKEYA

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Counsel for the Respondents: Ms. B. SWAPNA REDOY (SC FOR INCOME TAX)

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE P.SAM KOSHY AND

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THE HON'BLE SRI JUSTTCE N.TUKARAMJI . W.P. No. 25485 of 2o22

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ORI)ER:0rer ron'ble Sri Justice P.sAxI KosfiY)

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Heard Mr. A.V.A. Siva Kartikeya, learned counsel for the petitioner and Ms. B. Sapna Reddy, learned Junior Standing Counsel for Income Tax appearing for the respondents. Perused the entire record.

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The instant petition has been hled challenging the Assessment Order passed by respondent No.1 under section t48A(d) of t}re Income Tax Act, 1961 (hereinafter referred to as "the Act") dated 3O.O4.2O22 for the Assessment Year 2Ol5-16.

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One of the contentions that t.he petitioner has raised in the present writ petition is that under [he amended provisions of the Act which came into effect from O 1.O4.2O21, the respondents while proceeding under Section 148 of the Act were required to issue notice under Section 148A and provide an opportunity of hearing to the assessee. As per the amended provision of law, the proceedings to be drawn are also in a faceless manner. Whereas, it has been contended by the petitioner tl'rat in the instant case, reopening has been initiated by the Juridictional Assessing Officcr. [n respect of the said objection that the petitioner had raised, he relied upon the recent batch of writ

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petitions decided by this very Bench on 14.O9.2023 vide W.P.No.259O3 of 2022 and batch to the limited extent.

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Lrarned counsel for the Department would not dispute of having decided the said objection in the aforesaid batch matters. However, learned counsel submits that apart from the aforesaid objection, there have been other various objections also^which the petitioner has raised in the writ petition.

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So far as this contention of the learned counsel for the Department is concerned, this Bench, while disposing of W.P.No.259O3 of 2022 and batch had taken note of the same in paragraph Nos.37 & 38 which is reproduced herein under:

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"37. The preliminary objection raised by the petitroner is sustained and all these writ petitions stands allor,r'ed on this^ven Surisdictional^{issue. Since the impugned noticesandortlcrs arc} getting quashed on the point ofjurisdiction, we are not int:ltned to proceed further and decide the other issues rarsed by the petitioner which stands reserved to be raised and contended in an appropriate proceedings."

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38- Since the Hon'ble Supreme Court had, in the case of Ashish Agarwal, supra, as a one-time measure exercising tlle^powers under Article 142 of the Constitution of tndia, perrnrtted the Revenue to proceed under the substituted provisions, and this Court allowing the petitions only on the procedural flar.'. the right conferred on the Revenue would remain reserved to^proceed further if they so want from t.I.e stage of the order of the Supremc Court in the case of Ashish Agarwal, supra.

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[n view of the same, we are inclined to allow the present writ petition also on similar terms. Accordingly, the present Writ PeLition stands allou'ed on the objection of the petitioner that thc^proceedings have not been drawn in accordance with the amendecl^provision but nnder the unarnended provision which is otherq'isu not sustainable.

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,,/

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As has been held by this Bench in the aforesaid batch matters, the

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right of the respondents would stand reserved as is envisaged in

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paragraph Nos.37 & 38 of the said batch. No order as ro costs.

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Consequently, miscellaneous petitions pending, if any, shall

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stand closed.

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osr,.roi?i[btsi{ /rrRuE coPY/' ,ecffiorHcen

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to,.,, . ,n" lncome Tax officer, ward - 1, Nalgonda, lncome Tax office, Near Rail ' Uffi;"#;se, t'taigonoa - 508 001' Telansana' ,

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z it . i;,i-"irft ic".i.'XS E;,11 l"nHi %;i ; il5:833:' tBBt I": "' 7th Floor,^{lT Towers'Towers'}

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. 7th Floor,^{lT Towers'Towers'}

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.if; FE'.X:?rEr,cllel.c*Tg:'#1,:l"n!'r:Slil?['.]:6t1g?:f +:*il10-r-., Telanqana,^HYderabi

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^+r";^E[tilulg:13S,;,'3'T?"X"',i1"1?!ie"-3'Hvderabad', 'iffi *#iik'g;'c;k^'i:ul,["&*rx;';,].";i1?l3l['J!iv'3,3i''"', iioerabad^{- 500 084' Telangana'}

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