Apo/97/2023 Ia No: Ga/1/2023 Surendra Kumar Shah v. Income Tax Officer, Ward-22(2), Kolkata

OD 7 IN THE HIGH COURT AT CALCUTTACIVIL APPELLATE JURISDICTIONORIGINAL SIDE APO/97/2023IA NO: GA/1/2023SURENDRA KUMAR SHAHVSINCOME TAX OFFICER, WARD-22(2), KOLKATA BEFORE :THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 11[th] August, 2023 Appearance :Mr. Narendra Singh Saini, Adv.Mr. Devendra H. Jain, Adv.Mr. A.K. Gandhi, Adv.Ms. Sweta Gandhi Murgai, Adv.…for appellantMr. Prithu Dudheria, Adv.…;for respondent The Court : - This intra-Court appeal is directed against the order 6.6.2021 inWPO /1072/23. The appellant/assessee had challenged the order dated 12.04.2023passed under Section 148A(d) of the Income Tax Act, 1961 and the consequential noticeissued under 148 for the assessment year 2019-20. The learned Single Bench haddismissed the writ petition on the ground that the assessee would have ampleopportunity in reassessment proceedings and accordingly the writ petition wasdismissed. Aggrieved by such order the appellant has preferred the present appeal.Heard learned Counsel on either side. The grounds which have been canvassed by the appellant in writ proceedings areall touching upon the jurisdiction of the assessing officer to initiate the reassessmentproceedings. The first contention which was raised before the learned Writ Court as wellas before the assessing officer was that the reassessment proceedings is bad in law onthe ground that the alleged income based on the search upon a third party isspecifically conferred only in Section 153 of the Act and accordingly, recourse cannot be taken by assuming the jurisdiction under Section 147 of the Act. Further, it iscontended that the entire reassessment proceeding is void ab initio ad the provisions ofSection 153A/153C overrides Section 147/148 of the Act and therefore, it has to bemandatorily followed by the revenue. Further it was contended that the amendmentmade by Finance Act, 2021 expressly provides that the proceeding under Section 153Ccannot be initiated only in such cases where search action was initiated on or before1.4.2021 whereas in the case on hand entire search action as well as dissemination ofinformation was made between January 2019 and June 2019 and accordingly theaction of assessment, if any can only be made under Section 153C of the Act. Apartfrom that the assessee would contend that the jurisdictional assessing officer has nojurisdiction to initiate reassessment proceedings as and it is only the facelessassessment centre would have the jurisdiction, since the appellant assessee has raisedthe jurisdictional issue, at the first instance before the assessing officer the same oughtto have been decided. Furthermore, the jurisdictional issue has been specificallypleaded and raised in the writ petition. Therefore, in order to decide the jurisdictionalissue, it is necessary that the respondent department should file their affidavit inopposition so that a decision can be taken on the questions of law which have beenraised by the petitioner. Therefore, we are of the view the writ petition should be heardand decided on merits and opportunity stated to be available to the assessment in thereassessment proceedings under Section 148 of the Act, would not be an adequateopportunity since the appellant assessee questions the jurisdictions of the assessingofficer to initiate reassessment proceedings, which issue would go to the root of thematter. Therefore, the writ petition has to be decided on merits. The learned Advocateappearing for the appellant would submit that the matter can be decided by this Court.This appeal being an intra-Court appeal under Clause 15 of the Letters Patent the Courtwould be required to decide the correctness of the order passed by the learned Writcourt which had dismissed the writ petition wherein the jurisdictional issue raised by the appellant has not been decided. Therefore, it is necessary that the writ petitionshould be decided by the learned Single Bench wherein all the points can be urged bythe appellant and suitably defended by the respondent department. For the above reasons, the appeal is allowed. The order passed in the writpetition is set aside and the writ petition is restored to the file of the learned SingleBench. The entire reassessment proceedings pursuant to the order passed underSection 148A(d) of the Act dated 12.04.2023 and notice issued under Section 148 of theAct shall remain stayed till the writ petition is heard and disposed of. The respondentdepartment is directed to file an affidavit in opposition within a period of six weeks fromdate, and reply, if any within three weeks thereafter. Let the writ petition be listed before the appropriate learned Single Bench duringfirst week of December, 2023. (T.S. SIVAGNANAM) CHIEF JUSTICE Pkd/GH. (HIRANMAY BHATTACHARYYA, J.)