Sandeep Mittal (Ay 2016-17) v. For

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 14807/2024 Sandeep Mittal (Ay 2016-17) S/o Shri Prem Prakash Mittal, AgedAbout 49 Years, R/o 9, Mathur Vasiya Nagar, Behind Ram Mandir,Tonk Road, Opposite Morani Motors, Sanganer, Airport,Sanganer, Jaipur, Rajasthan - 302011. ----Petitioner Versus 1. Income Tax Officer, Ward 1(2), New Central RevenueBuilding Bhagwan Dass Road, Jaipur, Rajasthan - 302005.Building Bhagwan Dass Road, Jaipur, Rajasthan - 302005.2. National Faceless Assessment Centre (Nfac), Through TheAssessment Unit, Income Tax Department, Ministry OfFinance, Inside Jawahar Lal Nehru Stadium, New Delhi -110003.Assessment Unit, Income Tax Department, Ministry OfFinance, Inside Jawahar Lal Nehru Stadium, New Delhi -110003. ----Respondents For Petitioner For Respondents : Mr. Vedant Agarwal : Mr. Sandeep Pathak HON'BLE THE CHIEF JUSTICE MR. K.R. SHRIRAM HON'BLE MR. JUSTICE MANEESH SHARMAOrder 08/09/2025 1.Various grounds have been raised in the petition, one ofwhich is that the findings in the impugned order that there hasbeen escapement of income from assessment do not even findmention in the show cause notice. 2.Mr. Vedant Agarwal, counsel for petitioner submitted that inthe assessment order dated 27[th] March 2024, that is impugned inthe petition, there is a finding that long-term capital gain ofRs.57,94,032/-, claimed under Section 10(38) of the Income TaxAct, 1961 (for short ‘the Act’) by the assessee is being disallowedas bogus transaction in the scrips of Yamini Investment Company Ltd. Counsel says this has been added to the income of theassessee under Section 68 read with Section 115BBE of the Act.Mr. Agarwal submitted that there is not even an allegation of thisnature in the show cause notice issued under Section 148A(a) orSection 148A(b)of the Act, or that, that was the information whichsuggested that income chargeable to tax for Assessment Year2016-17 escaped assessment. 3.Having considered the pleadings filed with the documentsannexed thereto, we would agree with Mr. Agarwal’s submissions.4.In addition, the notice under Section 148 of the Act has beenissued by the Jurisdictional Assessing Officer (JAO) and not theFaceless Assessing Officer (FAO). Such a notice, this Court in thecase of Shree Cement Limited Vs. Assistant Commissioner of Income-Tax & Others[1 ]has held as invalid. Consequently, theassessment order based on an invalid notice also cannot sustain.5.Mr. Agarwal submitted that this ground has not been raisedbecause the petition was filed before the Court gave its judgmentin Shree Cement Limited(supra). 6.Mr. Pathak submitted that Shree Cement Limited (supra)has relied upon Sharda Devi Chhajer Vs. The Income TaxOfficer & Another[2],which in turn had followed HexawareTechnologies Ltd. Vs. Assistant Commissioner of Income-tax, Circle 15(1)(2)[3 ]and that judgment of Bombay High Courtwas already in place before the petition was filed, but neverthelesssince the law is settled on this aspect, for the moment he wouldn’tinsist on a formal amendment to the petition. 1DB Civil Writ Petition No.10540/2024, dated 05.08.2025 at Jaipur Bench (unreported)22025 SCC OnLine Raj 33863[2024] 162 taxmann.com 225 (Bombay)22025 SCC OnLine Raj 33863[2024] 162 taxmann.com 225 (Bombay) 7.At the same time, Mr. Pathak states that in HexawareTechnologies Ltd. (supra), Revenue has preferred a SpecialLeave Petition and notice has been issued. Counsel states that inview of the law as it stands today, Court may grant the prayer ofpetitioner but in case the Apex Court interferes with judgment inHexaware Technologies Ltd. (supra), Sharda Devi Chhajer(supra) or Shree Cement Limited (supra), then Revenue shouldbe given liberty to revive the notice issued under Section 148 ofthe Act. 1DB Civil Writ Petition No.10540/2024, dated 05.08.2025 at Jaipur Bench (unreported)22025 SCC OnLine Raj 33863[2024] 162 taxmann.com 225 (Bombay)22025 SCC OnLine Raj 33863[2024] 162 taxmann.com 225 (Bombay) 7.At the same time, Mr. Pathak states that in HexawareTechnologies Ltd. (supra), Revenue has preferred a SpecialLeave Petition and notice has been issued. Counsel states that inview of the law as it stands today, Court may grant the prayer ofpetitioner but in case the Apex Court interferes with judgment inHexaware Technologies Ltd. (supra), Sharda Devi Chhajer(supra) or Shree Cement Limited (supra), then Revenue shouldbe given liberty to revive the notice issued under Section 148 ofthe Act. 8.In the circumstances, the assessment order dated 27[th] March2024 as also notice dated 28[th] March 2023, issued under Section148 of the Act are quashed and set aside. 9.In view of the above, the consequential notice dated 27[th]March 2024, issued under Section 274 read with Section 271(1)(c)of the Act is also quashed and set aside. 10.Petition disposed. 11.Pending application, if any, also stands disposed. (MANEESH SHARMA),J (K.R. SHRIRAM),CJ KAMLESH KUMAR-RAHUL/3