M/S Empire Fasteners v. The Assistent Commissioner Of Income Tax . & Anr

$~94 & 95*IN THE HIGH COURT OF DELHI AT NEW DELHI*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 23.09.2025 +W.P.(C) 14754/2025, CM APPL. 60731/2025 & CM APPL.60732/202560732/2025+W.P.(C) 14755/2025, CM APPL. 60733/2025 & CM APPL.60734/202560734/2025 M/S EMPIRE FASTENERS .....PetitionerThrough:Mr. Atul Yeshwant Chitale, Sr. Adv.withMr.ShauryaPratapSinghBarhat, Ms. Gunjan Ahuja and Ms.Suchitra Atul Chitale, Advs.withMr.ShauryaPratapSinghBarhat, Ms. Gunjan Ahuja and Ms.Suchitra Atul Chitale, Advs. versus THE ASSISTENT COMMISSIONER OF INCOME TAX . & ANR......Respondents.....Respondents Through:Mr. Abhishek Maratha, SSC with Mr.Apoorv Agarwal, Ms. Nupur Sharma,Mr.GauravSinghandMr.Bhanukaran Singh Jodha, Advs.Apoorv Agarwal, Ms. Nupur Sharma,Mr.GauravSinghandMr.Bhanukaran Singh Jodha, Advs. CORAM:HON'BLE MR. JUSTICE V. KAMESWAR RAOHON'BLE MR. JUSTICE VINOD KUMAR V. KAMESWAR RAO , J. (ORAL) 1.These petitions have been filed with the following prayers:- “(i) Issue a writ in the nature of Certiorari or anyotherappropriatewrit,orderordirectionquashing and setting aside the impugned OrderbearingNo.ITBA/AST/F/148A/2025- 26/1077934313(1) dated 27.06.2025 passed byRespondent No. 1 under sub-section (3) of section148A of the Income Tax Act, 1961 for theAssessment Year 2019-20;(ii) Issue a writ in the nature of Certiorari or anyotherappropriatewrit,orderordirectionquashingtheimpugnedNoticebearingNo.ITBA/AST/S/148_1/2025-26/1077935009(1) dated27.06.2025 issued by Respondent No. 1 underSection 148 of the Income Tax Act, 1961 for theAssessment Year 2019-20, and;” 2.The submission of Mr. Atul Yeshwant Chitale, learned SeniorCounsel for the petitioner is primarily that the impugned notice issued on08.03.2025 under Section 148A(1) of the Assessment Year (‘AY’) 2019-20was issued by the Jurisdictional Assessing Officer and not by the FacelessAssessing Officer and as such, the proceedings culminating in the issuanceof notice under Section 148A gets vitiated. He also states that the issue iscovered by the judgment of the Bombay High Court in the case ofHexaware Technologies Ltd. vs. Assistant Commissioner of Income Tax,2024 SCC OnLine Bom (1249) and recently in the case of PrakashPandurang Patil vs. Income Tax Officer, Ward 5, Panvel & Ors in WritPetition No. 10749/2024, decided by the Bombay High Court in favour ofthe assessee, the SLP against which has been dismissed by the SupremeCourt in Income Tax Officer Ward 5 Panvel & Ors. vs. PrakashPandurang Patil, Special Leave Petition (Civil) Diary No. 39689/2025, on18.08.2025. According to him, the issue as to whether it is the FacelessAssessing Officer which would have the requisite jurisdiction stands settledby the Supreme Court. He states that the dismissal of the SLP being on merits, the judgment of the Bombay High Court, which has relied upon in Hexaware Technologies Ltd. (Supra), has been upheld. 3.Mr. Abhishek Maratha submits that the contentions of Mr. Chitale areunmerited inasmuch as this Court, while dismissing a petition seekingsimilar relief, has settled the law in TKS Builders Pvt. Ltd. vs. Income TaxOfficer, 2024 SCC OnLine Del 7508, which, though under challenge beforethe Supreme Court, has not been stayed. Hence, it would be binding on thisCourt. As such, insofar as the jurisdiction of Delhi is concerned, both theofficers i.e., the Jurisdictional Assessment Officer and the FacelessAssessment Officer, have concurrent jurisdiction to initiate proceedings forre-assessment. To buttress this argument, he has relied upon the judgment inKhoday Distilleries Limited (now known as Khoday India Limited) andOthers vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited,Kollegal (under liquidation) represented by the Liquidator, (2019) 4 SCC376, wherein paragraph 26.2 states as under:- “26.2. We reiterate the conclusions relevant forthese cases as under: (Kunhayammed case, SCCp. 384) “26.2. We reiterate the conclusions relevant forthese cases as under: (Kunhayammed case, SCCp. 384) “(iv) An order refusing special leave to appealmay be a non-speaking order or a speaking one.In either case it does not attract the doctrine ofmerger. An order refusing special leave to appealdoes not stand substituted in place of the orderunder challenge. All that it means is that theCourt was not inclined to exercise its discretionso as to allow the appeal being filed. (v) If the order refusing leave to appeal is aspeaking order i.e. gives reasons for refusing the grantofleave,thentheorderhastwoimplications.Firstly,thestatementoflawcontained in the order is a declaration of law bythe Supreme Court within the meaning of Article141 of the Constitution. Secondly, other than thedeclaration of law, whatever is stated in the orderare the findings recorded by the Supreme Courtwhich would bind the parties thereto and also thecourt, tribunal or authority in any proceedingssubsequent thereto by way of judicial discipline,the Supreme Court being the Apex Court of thecountry. But, this does not amount to saying thatthe order of the court, tribunal or authority belowhas stood merged in the order of the SupremeCourt rejecting the special leave petition or thatthe order of the Supreme Court is the only orderbinding as res judicata in subsequent proceedingsbetween the parties. (vi) Once leave to appeal has been granted andappellate jurisdiction of the Supreme Court hasbeen invoked the order passed in appeal wouldattract the doctrine of merger; the order may beof reversal, modification or merely affirmation.(vii) On an appeal having been preferred or apetition seeking leave to appeal having beenconverted into an appeal before the SupremeCourt the jurisdiction of the High Court toentertain a review petition is lost thereafter asprovided by sub-rule (1) of Order 47 Rule 1CPC.” 4.He states that the order of the Supreme Court in Prakash PandurangPatil (Supra) does not give any reasons and as such is a dismissal in limine.Further, his contention is that this Court in the case of PC Jeweller Limitedvs. Assistant Commissioner Of Income Tax & Anr., W.P.(C) 13229/2024, decided on 23.01.2025, has dismissed a petition with similar challenges byrelying upon TKS Builders Pvt. Ltd. 5.Having heard the learned counsel for the parties, we are of the viewthat the submission of Mr. Chitale cannot be accepted for the reason that aco-ordinate Bench of this Court in the case of TKS Builders Pvt. Ltd.(Supra) has settled the issue insofar as the jurisdiction of Delhi is concerned,by stating that both the Jurisdictional Assessing Officer and the FacelessAssessing Officer have concurrent jurisdiction. 6.Suffice it to state, as referred to by Mr. Maratha, a co-ordinate Benchof this Court in the case of PC Jeweller (Supra), has also dismissed a writpetition seeking similar relief by following the ratio in TKS Builders Pvt. Ltd. (Supra). Though the judgment in PC Jeweller (Supra), has been takenin appeal before the Supreme Court, we note that the Revenue has beenpermitted to continue the proceedings on the caveat that any order, if passedadverse to the petitioner, shall not be given effect. 7. While it is true that the appeal against TKS Builders Pvt. Ltd. (Supra) is also pending adjudication before the Supreme Court, we note that theSupreme Court has not stayed the operation of the judgment. The judgmentin Hexaware Technologies Ltd. (Supra) is also pending considerationbefore the Supreme Court. 8.That apart, even in the cases of M/s Mala Petrochemicals andPolymers vs. the Income Tax Officer & Ors. WP(C) 12011/2025, decidedon 19.08.2025, Mehak Jagga vs. ITO (W.P.(C) 13149/2025, decided on28.08.2025 and All India Kataria Education Society vs. DCIT W.P.(C)14225/2025, decided on 15.09.2025 we have dismissed similar petitions by Signature Not Verified relying upon TKS Builders Pvt. Ltd. (Supra). 9.In view of the above, the captioned petitions are dismissed. Thepending applications, having become infructuous, are also dismissed. V. KAMESWAR RAO, J is also pending adjudication before the Supreme Court, we note that theSupreme Court has not stayed the operation of the judgment. The judgmentin Hexaware Technologies Ltd. (Supra) is also pending considerationbefore the Supreme Court. 8.That apart, even in the cases of M/s Mala Petrochemicals andPolymers vs. the Income Tax Officer & Ors. WP(C) 12011/2025, decidedon 19.08.2025, Mehak Jagga vs. ITO (W.P.(C) 13149/2025, decided on28.08.2025 and All India Kataria Education Society vs. DCIT W.P.(C)14225/2025, decided on 15.09.2025 we have dismissed similar petitions by Signature Not Verified relying upon TKS Builders Pvt. Ltd. (Supra). 9.In view of the above, the captioned petitions are dismissed. Thepending applications, having become infructuous, are also dismissed. V. KAMESWAR RAO, J VINOD KUMAR, J SEPTEMBER 23, 2025/sr W.P. (C) 14754/2025 & W.P. (C) 14755/2025