Allowed

Vensai Infra v. The National Faceless Assessment Center

Telangana HC6 Dec 2023WP/33095/2023

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging an income tax reopening notice issued under Section 148 of the Income Tax Act, 1961 before the amendment, and subsequent orders and penalty proceedings, declaring them void, illegal, arbitrary, and violative of Article 14.

What did the court decide?

The writ petition was allowed on the jurisdictional ground; the manual notice, order, assessment order, and consequent penalty proceedings were declared void and set aside.

Vensai Infra Vs The National Faceless Assessment Center — Income Tax | Telangana HC (2023)

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[^337e 1

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAO (Special Original Jurisdiction)

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WEDNESDAY, THE SIXTH DAY OF DECEMBER 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: 33095 OF 2023

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Between:

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Vensai lnfra, A partnership firm Having its office at 105, Kranthi Prasanna Apartments, Arul Colony, A.S.Rao Nagar Kapra, ECIL, Hyderabad Represented by its partner Mr. Venkatesh V, S/o. Late V. Lingiah, Aged about 44 Years' Rl/o' Hyderabad

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...'ETIT..NER

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AND

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The National Faceless Assessment Center, lncome-tax Department, New Delhi, lndia

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lncome Tax Officer, Ward 1 1^('1 ), Hyderabad.

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The Assessment Unit, Income Tax Department Ministry of Finance

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Government of lndia' New Delhi

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...RES'.NDENTS

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Petition under Article 226 ol the Constitution of lndia^praying that in the circumstances stated in the affidavit filed therewith, the High Court^maybe pleased to issue a writ, order or direction, more particularly in the nature of writ of mandamus declaring the manual notice under Section 148 of the^{lncome Tax Act,} 1961 dated 2B-O7-2022, the order under Section 148A(d) dated^{28-07-2022 under} DIN and Order No. ITBA/COM/F/1 712022- 2311044232529(1)^{and the assessment} orderdated 12-05-2023 bearing DIN No. ITBA/AST/S/14712023-2411052786108(1) and the consequent^{penalty proceedings} as^{being void, illegal, arbitrary, without} jurisdiction, violate of Article 14 of the Constitution of lndia and consequently set aside the same.

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lA NO: 1 OF 2023

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Petition under Section 151 CPC^praying that in^{the circumstances statedin} the affidavit filed in support of the^petition, the^{High Court may be pleased to stay}

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the penalty proceedings initiated pursuant to the assessment order dated 12-052023 vide notices dated 20-09-2023 uls. 271(1)(b) and u/s. 271(1)(c) bearing Din tTBAtPNLtFl2Tl(1)(b)12023-24l1056306002(1) and lrBA/PNL/F/271(1)(c)t202324l1 056305968(1 ) respectively.

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lA NO: 2 OF 2023

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in suppbrt of the petition, the High Court may be pleased to stay all further actions including collection of tax pursuant to the assessment order d ated 1 2-O 5 -2023 bea rin! D I N N o. I TBA/AST/S/'I 4 7 I 2023 -24 I 1 O52T 86 1 OB(1 ).

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Counsel for the Petitioner: SRI M.NAGA DEEPAK Counsel for the Respondent Nos.1 & 2: SRI SUNDARI R PISUPATI, Sr SC for lncome Tax Dept Counsel for the Respondent No.3: SRI GADI PRAVEEN KUMAR, Dy. SOLICITOR GENERAL OF INDIA

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The Court made the following: ORDER

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THE HONOURABLE SRI JUSTICE P.SAM^KOSHY AND THE HONOURABLE SRI JUSTICE^N.TUI(ARAMJI

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IIRIT PETITION No.33O95 OF 2o23

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ORDER:(per Ho n'ble Sn Justice P.SA I^K0SHY)

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The instant Writ Petition has been filed by^the petitioner under Articl e 226 of the Constitution of^India challenging the manual notice under^{Section148 of Income} Tax act, 1961, dated 28.07.2022, the order under^Section 14BA(d), dated 28.O7.2022 under DIN &^Order No.ITBA/CoM/F/¹⁷ 12022 231 to44232529(tl and^the assessment order, dated L2.O5.2023 bearing^{DIN No.ITBA/} AST/ S/ 147 / 2O23-24l 1Os2786¹ 0B(¹ ).

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One of the contentions that the petitioner has^raised in the present Writ Petition is that under the^amended provisions of the Act which came into effect^from Ol.O4.2O2l, the respondents, while^{proceedingunder} Section 148 of the Act, were required to^{issue noticeunder} Section 1484, ald 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.

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PS-[(,J & MrX,J W.P.No.33095 oJ 2O23

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Whereas, learned counsei for the petitioner contended that, in the instant case, reopening has been initiated by the Jurisdictional Assessing Officer. In support of his contention, he relied upon the recent judgment rendered by this very Bench in WP.No.259O3 of 2022 & batch, dated 14.09.2023 wherein this Court disposed of the batch of writ petitions to the limited extent.

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On the other hand, learned Stalding Counsel for the respondent-Department does not dispute that the said objection was decided in the aforesaid batch of Writ Petitions. However, he further contended 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 respondent-Department is concerned, this Bench, while disposing of said batch of writ petitions, had taken note of the same at paragraph Nos.37 & 38 which are reproduced herein under:

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PSK,J & NTR,J W.P.No.33O95 oJ 2O23

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t I

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"37. The prelimiftary objection raised bA the petitioner is sustained and all these writ petitions stands allowed on this uery juisdictional issue. Since the impugned notices and orders are getting quashed on the point of jurisdiction, ute are not inclined to proceed further and decide the other issues rdised by the petitioner uhich sktnds reserued to be raised and contended in an a.ppropiate pro ce eding s. "

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"38. Since the Hon'ble^Supreme Court had, in ttte case of Ashish Aganaal, suprq as a one-time measTtre exercising the pou-rcrs under Article 142 of the Constitution of India, permitted the Reuenue to proceed under the substituted prouisions, and this Court allouing the petitions only on the procedural flau,^{the ight conferredon the Reuenue utould} remain reserued to proceed further if they so u.tant from^{the stage of the order of the Supreme Court in} the case of Ashish Agaru.tal, supra."

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In view of the sarne, we are inclined to allow the present writ petition also on similar terms. Accordingly, the present Writ Petition stands allowed on the objection of the petitioner that the proceedings have not been drawn in accordance with the amended provision but under the unamended provision which is otherwise not sustainable.

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