Allowed

M/s Bhavya Constructions Private Limited v. The Deputy Commissioner of Income Tax

Telangana HC6 Nov 2023WP/25680/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an income tax assessment order dated 28.04.2022. The court sustained the petitioner's objection that the proceedings were initiated under unamended provisions of the Income Tax Act, violating the requirement to issue a Section 148A notice. The quashing was limited to this jurisdictional flaw, with the matter reserved for larger issues.

What did the court decide?

The present Writ Petition stands allowed on the objection that proceedings were not drawn in accordance with amended provisions but under unamended provisions.

M/s Bhavya Constructions Private Limited Vs The Deputy… — Income Tax | Telangana HC (2023)

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[³³⁷⁹ I

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HIGH COURT FOR THE STATE OF^{TELANGANA AT HYDERABAD} (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.SAIIKOSHY AND THE HONOURABLE SRI JUSTICE^N.TUKARAMJI

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WRIT PETITION NO:25680^{OF 2022}

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Between:

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M/s Bhavya Constructions Private^Limited ,^{8-2-293l\2lAllto 3, Plot No. A-1} ' t it f toor,' Bhavyas Spoorthi Bhavan,^{RoadNo.1, Film Nagar, JubileeHills,} Hvderabad - 5d0 096, Telangana,^{Representedby its ManagingDirector,} Mi. Aditya Venigalla, S/o. Mr.^{V. AnandaPrasad.}

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...PETITIONER

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AND

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1 The Deputy Commissioner of^{lncome Tax,Circle -} 1(1)'^{HyderaOr9,^Fgg7} No.722,'7li Floor, lT Towers,^{AC Guards,MasabTank, Hyderabad - 500 004,} Telangana.

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The Principal Commissioner^{of lncome Tax - 1, Hyderabad, Room} -No.7 11, 7th Floor,'lT Towers, AC Guards,^{Masab Tank' Hyderabad -50} 0004, Telangana.

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...RESPONDENTS

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Petition under Article 226 of^{the constitution of lndia prayingthat in the} circumstances stated in the^{affidavitfiled therewith, the High court may be} pleased to issue a writ of Mandamus or any^{other appropriate writ, orderor} Direction, declaring:

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a. the order daled 28.04.2022,^{passeduis 14SA(d)of the Act, videDINand} Notice No. ITBA/AST/F/148N2022-2311O42890872(1),^{by the 1st Respondent,} for the Assessment Year 2018 -^{19; and}

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b. the notice dated 28.04.2022, issued^{by the 1st Respondent, u/s '148 of the} lncome Tax Act, 1961 , vide DIN^{and Notice. ITBA/AST1S/148-112022-} 23t1042890931(1), for the^{Assessment Year2018} -^19;

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as arbitrary, illegal, bad in law, void-ab-initio, violative^{of the principlesof natural} justice apart from being vrolative of Articles 14, 19(1Xg) and 265 of the Constitution of lndia and Sec. 148A of the^lncome Tax Act,¹⁹⁶¹ ,^and consequently set aside the same in the interests of^justice.

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lA NO: 1 OF 2022

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Petition under Section^'1 51 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,^{pursuantto the notice dated} 28.04.2022, issued by the 1st Respondent, u/s^'148 of the^{lncome Tax Act,1961,} vide DIN & Notice: ITBA/AST/S/148_112022-^{2311042890931(1),} for^the Assessment Year 2018 - 19,^pending disposal of the above^{Writ Petition.}

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Counsel for the Petitioner: SRI A.V.A.SIVA^KARTIKEYA

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Counsel for the Respondents: M/s. B.SAPNA^{REDDY, Jr. SC FOR INCOMETAX} The Court made the following: ORDER

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THE HON'BLE SRJ JUSTICE P.SAM^KOSHY

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AND

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THE HON'BLE SRI JUSTICE N.TUKARAMJI W.P. No.25680 of2022

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ORDER: nce' tto n'ble Si Justicc P.SAII KOSIIY)

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Heard Mr. A.V.A. Siva Kartikeya, learned^{counselfor the} petitioner and Ms. B. Sapna Reddy, learned Junior Standing^Counsel for Income Tax appearing for the respondents.^{Perusedthe entire} record.

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The instant petition has been filed challenging^{the Assessment} Order passed by respondent No.1 under section^{148A(d) of the Income} Tax Act, 1961 (hereinafter referred to as^{uthe Act")dated 28.04 .2022} for the Assessment Year 2Ol8-19.

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One of the contentions that the^{petitioner has raised in the} present writ petition is that under the amended^{provisionsof the Act} which came into effect from 01.O4.2021, the^{respondentswhile} 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 that in the instant case, reopening^{has been initiated} by the Juridictional Assessing Officer. In respect^{of the said objection} that the petitioner had^raised, he relied upon^{the recent batchof writ}

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!-,, - uqffi .r \ .i

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petitions decidcd by this^{very Bench on14'O9'2023vide} W.P.No.259O3 of^{2022 and batch to the limited extent'}

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Learned counsel for the^{Departmentwould not disputeof} having decided the^{said objectionin the aforesaid batch matters'} However, learned counsel^{submits that apart from the aforesaid} objection, there^{have been other various objections also whichthe} petitioner has raised in the^{writ petition.}

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So far as this contention of^{the learned counselfor the} Department is concerned,^{thisBench, while disposingof} W.P.No.25903 of 2022 and^{batchhad taken note of the same in} paragraph Nos.37 & 38^{which is reproduced hereinunder:}

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"37. Tine preliminary^{objectionraised by the} Petitioner^is sustained and all^{thesewrit petitionsstalds allowedon this very} jurisdictionat issue. Since the impugned^{notices and ordersare} getting quashed on the point^{of jurisdiction,we are not inclinedto} proceed lurther and decide the^{otherissues raisedbythe} petitioner which stands reserved to^{be rajsed and contendedin art} appropriat^{c proceed ings. "}

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Since the^{Hon'ble SupremeCourt had, in the case of Ashish} Agarwal, supra, as a one-time^{measure exercisingthepowers} under Article 142 of the^{Constitutionof India, permittedthe} Revenue lo^proceed under^{the substitutedprovisions,and ttris} Court allorving the^{petitions only on the procedural flaw, the right} conferred on the^{Revenuewould remain reservedtoproceed} further if they so^{want from the stage of the order of the Supreme} Court in the case of^{Ashish Agarwal, supra.}

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In view of the same,^{we are inclinedto allow the present writ} petition also on similar terms.^{Accordingly, the present Writ Petition} stands ailowed on the^{objection of the petitioner that the proceedings} have not been <lrawn^{in accordancewith the amendedprovisionbut} under the unamended^{provisionwhichis ott er*isJnltsustainable.}

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As has been held by this Bench in the aforesaid batch matters, the right of the respondents would stand reserved as is envisaged in paragraph Nos.37 & 3g ofthe said batch. No order as to costs.

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7 Consequently, miscellaleous petitions pending, if any, shall

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stand closed

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sD/'PiS3BYffiREA'BFRIX

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/ITRUE^COPY// sebffiu^oFFlcER

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To,

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