M/S.statex Engineering Private Limited v. Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/ Income Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE M.SUNDAR W.P.No.17491 of 2021& M/s.Statex Engineering Private LimitedRepresented by its Managing DirectorMr.K.SubramanianE-49, SIDCO Industrial Estate KuruchiCoimbatore – 641 021 ...PetitionerVs. Additional/Joint/Deputy/Assistant Commissioner of Income Tax/Income Tax Officer National Faceless Assessment CentreDelhi ...Respondent Writ petition filed under Article 226 of the Constitution ofIndia for issuance of writ of certiorari calling for the recordsof the on the file of the respondent in passing the impugnedorderinITBA/AST/S/143(3)/2021-22/1034519830(1)dated29.07.2021 and quash the same as illegal, arbitrary and devoidof merit. For Respondent : Mr.A.N.R.Jayapratap Standing Counsel Mr.R.Sivaraman, learned counsel on record for writpetitioner and Mr.A.N.R.Jayapratap, learned counsel, who hasaccepted notice on behalf of lone respondent, are before thisVirtual Court. 2. Captioned main writ petition is taken up with the consentof learned counsel on both sides as the matter turns on a veryacute and narrow compass. 3. An order dated 29.07.2021 qua the writ petitioner companybeing an order made under Section 143 (3) of Income Tax Act, https://hcservices.ecourts.gov.in/hcservices/ 1961' (hereinafter 'IT Act' for the sake of brevity), is theimpugned order in the captioned writ petition. This orderpertains to the Assessment year 2015-16. To be noted, thisorder has been made pursuant to an order dated 04.02.2020 madein exercise of powers under Section 263 of IT Act. Theoperative portion of this order dated 04.022020 under Section263 is paragraph 9 and the same reads as follows: '9. The Assessing Officer is hereby directed tore-do the assessment afresh after verification of thefacts discussed above. The Assessing Officer shallgive adequate opportunity of being heard to theassessee in this regard before passing the freshassessment order.' 4. The aforementioned order under Section 263 of the IT Actwas carried in appeal to the 'Income Tax Appellate Tribunal, 'ABench', Chennai' (hereinafter 'ITAT' for the sake of convenienceand clarity) and ITAT, after full contest, vide order dated16.07.2021 set aside 04.02.2020 order under Section 263 of ITAct. The sequitur is, there is no jurisdiction for making theorder under Section 143(3) i.e., the impugned order. 5. Notwithstanding the above order of ITAT, the impugnedorder came to be made on 29.07.2021 and therefore, the same iswithout jurisdiction is learned counsel's say. Learned Revenuecounsel, however, submits, on instructions, that the order ofITAT was not brought to the notice of the Authority concernedwhen the impugned order was made. This submission is recorded. 6. Be that as it may, without expressing any opinion on themerits of the matter, as it emerges clearly that the impugnedorder has been made without jurisdiction as absent 04.02.2020order under Section 263, the impugned order cannot be made, thisby itself draws the curtains on the impugned order. In otherwords, the prayer of the writ petitioner deserves to be accededto. 7. There is one other aspect of the matter which needs to beaddressed. The aforementioned order of ITAT is appealable andthe Revenue can always prefer an appeal to this Court underSection 260A of the IT Act. As of today, no appeal has beenpreferred. Therefore, if so advised and if the Revenue choosesto file an appeal against the order of ITAT, though obvious, itwill follow that further orders, if any and if that be so, willbe dependent on what this Hon'ble Court decides in a possibleappeal, but as of today, there is none. Therefore, the impugnedorder is set aside on the simple ground that on the date of theimpugned order made, namely 29.07.2021, the Authority had nojurisdiction as the 04.02.2020 order under Section 263 of IT Acthad been set aside in entirety by ITAT on 16.07.2021. 7. There is one other aspect of the matter which needs to beaddressed. The aforementioned order of ITAT is appealable andthe Revenue can always prefer an appeal to this Court underSection 260A of the IT Act. As of today, no appeal has beenpreferred. Therefore, if so advised and if the Revenue choosesto file an appeal against the order of ITAT, though obvious, itwill follow that further orders, if any and if that be so, willbe dependent on what this Hon'ble Court decides in a possibleappeal, but as of today, there is none. Therefore, the impugnedorder is set aside on the simple ground that on the date of theimpugned order made, namely 29.07.2021, the Authority had nojurisdiction as the 04.02.2020 order under Section 263 of IT Acthad been set aside in entirety by ITAT on 16.07.2021. Writ petition allowed and impugned order dated 29.07.2021bearing reference ITBA/AST/S/143(3)/2021-22/1034519830(1) is setaside. Consequently, connected W.M.Ps are also disposed of asclosed. There shall be no order as to costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar gpaTo The Additional/Joint/Deputy/Assistant Commissioner of Income Tax/, Income Tax Officer, National Faceless Assessment Centre,Delhi.+1cc to Mr.A.P.Srinivas, Advocate, S.R.No.42609 W.P.No.17491 of 2021 &W.M.P.Nos.18581 and 18582 of 2021 GP[co]NSK 09/09/2021