Vandana Kumari @ Bandana Kumari v. Principal Commissioner Of Income Tax-1, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.2317 of 2025 ====================================================== Vandana Kumari @ Bandana Kumari, W/o Shri Laxmi Kumar, Kashipur,R.N.A.R. College Road Near BED College Kashipur, P.O., P.S. and District-Samastipur- 848101 (Bihar). ... ... Petitioner Versus 1.Principal Commissioner of Income Tax-1, Patna. 2.Income Tax Officer, Ward-3 (3), Samastipur. 3.Assessment Unit, National Faceless Assessment Centre, Delhi. ... ... Respondents ====================================================== Appearance :For the Petitioner: Mr. Ajay Kumar Jha, Advocate Mr. Sanjeev Kumar, Advocate Mr. Aman Raja, AdvocateFor the Respondents: Ms. Archana Sinha @ Archana Shahi, Senior SC Mr. Alok Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE AJIT KUMARORAL ORDER (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) 506-08-2025Heard learned counsel for the petitioner and learned Senior Standing Counsel for the Department of Income Tax. 2. The petitioner in this case is aggrieved by and dissatisfied with the order issuing notice to the petitioner underSection 148 of the Income Tax Act, 1961 (hereinafter referred toas the ‘Act of 1961’). The reliefs prayed in the writ applicationare being reproduced hereunder:- “(a) For issuance of appropriatewrit/direction(s) to prevent therespondents from exceeding itsjurisdiction and/or acting contrary to therule of natural justice, where the defect of jurisdiction is apparent on the face ofthe proceedings and/or there is an abuseof power. b. For issuance of writ of Certiorari orany other appropriate writ(s), order(s) ordirection(s) quashing the notice issuedby the Respondent No. 2 under thesection 148 of Income-tax Act, 1961(here-in-after called “the Act”) dated28/03/2021 as the notice issued by theRespondent No. 2 is wholly illegal andwithout jurisdiction in as much as thesame has been issued beyond the periodof limitation prescribed under thesection 149 of the Act. c. For issuance of writ of Certiorari orany other appropriate writ(s), order(s) ordirection(s) quashing the notice issuedby the Respondent No. 2 under thesection 148 of the Act dated 28/03/2021as the sanction required to be accordedbefore the issuance of the notice undersection 151 of the Act is conspicuouslyabsent. d. For issuing the appropriate order,direction or writ in the nature ofCertiorari for quashing the Order ofAssessment and consequential notice ofdemand under the section 156 of the Actas the completion of the proceedingsunder section 147 read with section 144read with section 144B of the Act in theabsence of the mandatory statutorynotice under section 143(2) of the Act isillegal and beyond the jurisdiction of Respondent No. 3. e. For issuing the appropriate order,direction or writ in the nature ofCertiorari for quashing the Order ofAssessment and consequential notice ofdemand under the section 156 of the Actas the passing of the order under 144instead of 143(3) or the Act is bad inlaw in as much as the impugned order isbeyond the purview of the conditionsstipulated under section 144 of the Act.f. For issuing the appropriate order,direction or writ in the nature ofCertiorari for quashing the Order ofPenalty passed under section 271F dated15/09/2022 as the order of assessment initself is passed after erroneousassumption of jurisdiction by the Ld.Assessing Officer. g. For issuing the appropriate order,direction or writ in the nature ofCertiorari for quashing the Order ofPenalty passed under section 271Bdated 23/09/2022 as the order ofassessment in itself is passed aftererroneous assumption of jurisdiction bythe Ld. Assessing Officer. g. For issuing the appropriate order,direction or writ in the nature ofCertiorari for quashing the Order ofPenalty passed under section 271Bdated 23/09/2022 as the order ofassessment in itself is passed aftererroneous assumption of jurisdiction bythe Ld. Assessing Officer. h. For issuing the appropriate order,direction or writ in the nature ofCertiorari for quashing the Order ofPenalty passed under section 271(1)(c)dated 23/09/2022 as the order ofassessment in itself is passed aftererroneous assumption of jurisdiction bythe Ld. Assessing Officer. i. For issuance of other writ/direction(s)while the petitioner may in the fact andcircumstances of the case to be foundentitled to. j. For grant such other relief(s) as deemfit and proper by issuing an appropriatewrit(s), rule(s) or direction(s) as deemfit and proper.” 3. It is the case of the petitioner that the return of the petitioner for the assessment year 2013-14 was selected forscrutiny. A notice under Section 148 of the Act of 1961 wasissued on 28.03.2021 and the case of the petitioner wasreopened on the basis of the reason that as per the informationavailable on the system of the Department, the petitioner haddeposited cash of Rs.2,88,85,705/- in her savings bank accountduring the relevant year. 4. It is stated that subsequent to the notice underSection 148, a notice under sub-section (1) of Section 142 of theAct of 1961 was issued of 30.06.2021 by Respondent No. 2seeking some information pertaining to the income of thepetitioner for the relevant year along with the evidences. It is thesubmission of learned counsel for the petitioner that there hadbeen some delay in accessing the e-mail, therefore, thepetitioner could not respond to the notices issued by theDepartment but as soon as the petitioner came to know about the initiation of the reassessment proceeding, she immediatelyfiled the due replies. The petitioner filed her return of incomefor the relevant year on 28.08.2021 vide acknowledgment ascontained in Annexure ‘P/3’ to the writ petition. 5. It is further case of the petitioner that a furthernotice under Section 142(1) of the Act of 1961 was issued on31.08.2021 seeking compliance of the previous notice issuedunder sub-section (1) of Section 142 but since the petitioner didnot respond to the said notice, it was followed by another noticedated 04.02.2022. It is the specific case of the petitioner that thenotices issued subsequently which are Annexures ‘P/4’ and ‘P/5’respectively called for filing of the return under Section 148 ofthe Act despite the fact that the return of the income in responseto the notice under Section 148 of the Act of 1961 had alreadybeen filed on 28.08.2021. 6. This writ application was earlier opposed bylearned Senior Standing Counsel for the Department. 7. After hearing learned counsel for the petitioner and learned Senior Standing Counsel for the Department on30.07.2025, this Court passed the following order:- “Heard learned counsel for thepetitioner and learned Senior StandingCounsel for the Department of IncomeTax. 2. The petitioner is aggrieved by and dissatisfied with the order ofassessment as contained in theAnnexure ‘P/11’ to the writ application.It has been assailed on the ground thatthe impugned order suffers fromjurisdictional error. 3. Learned counsel for the petitionersubmits that in paragraphs ‘3’ and ‘5’ ofthe impugned order, the AssessingOfficer has recorded that “in responseto the notice under Section 148 of theIncome Tax Act, 1961 (hereinafterreferred to as the ‘Act of 1961’), theassessee has not filed her return ofincome for the assessment year 2013- 14” but this is not a correct fact. “Heard learned counsel for thepetitioner and learned Senior StandingCounsel for the Department of IncomeTax. 2. The petitioner is aggrieved by and dissatisfied with the order ofassessment as contained in theAnnexure ‘P/11’ to the writ application.It has been assailed on the ground thatthe impugned order suffers fromjurisdictional error. 3. Learned counsel for the petitionersubmits that in paragraphs ‘3’ and ‘5’ ofthe impugned order, the AssessingOfficer has recorded that “in responseto the notice under Section 148 of theIncome Tax Act, 1961 (hereinafterreferred to as the ‘Act of 1961’), theassessee has not filed her return ofincome for the assessment year 2013- 14” but this is not a correct fact. 4. It is submitted that the notice underSection 148(1) of the Act of 1961 wasissued on 28.03.2021 requiring thepetitioner to file her return within aperiod of 30 days. The petitioner didnot file her return within the period of30 days but well before the passing ofthe assessment order, the petitioner hadalready filed her return on 28.08.2021,therefore, it would be taken as a returnunder Section 139(4) of the Act of1961. 5. It is submitted that in suchcircumstance, a notice under sub-section (2) of Section 143 of the Act of1961 would be mandatory. If no suchnotice has been issued, the AssessingOfficer cannot assume jurisdiction. Inhis submission, it would be a case oflack of inherent jurisdiction on the partof the Assessing Officer. 6. Learned counsel has relied upon thejudgments of this Court in the case ofChand Bihari Agrawal Vs.Commissioner of Income Tax,CentralandAnotherinMiscellaneous Appeal No. 239 of 2011which has been relied upon by thisCourt in the case of Commissioner of Income Tax-11 and Another Vs.Nagendra Prasad in MiscellaneousAppeal No. 662 of 2014. The basicjudgment on which Chand BihariAgrawal(supra)andNagendraPrasad (supra) have formed its opinionis the judgment of the Hon’bleSupreme Court in the case of AssistantCommissioner of Income-Tax Vs.Hotel Blue Moon reported in (2010)321 ITR 362 (SC). Learned counselhas also relied upon a Division Benchjudgment of the Hon’ble Delhi HighCourt in the case of Shaily Juneja Vs.Assistant Commissioner of IncomeTax Circle 34-1 and Another reportedin 2024 DHC 6774-DB. On thesegrounds, prayer has been made to setaside the impugned order. 7. On the other hand, Ms. ArchanaSinha, learned Senior Standing Counselfor the Department submits that theHotel Blue Moon judgment came inthe year 2010 which was prior toinsertion of the proviso to sub-section(2) of Section 143 of the Act of 1961. Itis submitted that on a reading of theproviso to sub-section (2) of Section148 of the Act of 1961, it would appearthat any return of income requiredunder sub-section (1) furnished afterthe expiry of the period specified in thenotice under said sub-section shall notdeem to be a return under Section 139of the Act of 1961. 8. Learned counsel for the petitionerhas, however, contested this submissionof learned Senior Standing Counsel forthe Department as according to him,proviso to sub-section (2) of Section148 was inserted only vide the FinanceAct 2023 with effect from 01.04.2023whereas the present matter pertains tothe year 2020-2021 as the notice wasissued only on 28.03.2021. 9. At this stage, learned SeniorStanding Counsel for the Departmentprays for a short adjournment to enableher to get clarity on the issues withregard to the proviso to sub-section (2)of Section 143 as well as proviso tosub-section (2) of Section 148 of theAct of 1961. 10. Let this matter be listed on05.08.2025 under the same heading.” 8. Today, when the writ application has been taken up 8. Learned counsel for the petitionerhas, however, contested this submissionof learned Senior Standing Counsel forthe Department as according to him,proviso to sub-section (2) of Section148 was inserted only vide the FinanceAct 2023 with effect from 01.04.2023whereas the present matter pertains tothe year 2020-2021 as the notice wasissued only on 28.03.2021. 9. At this stage, learned SeniorStanding Counsel for the Departmentprays for a short adjournment to enableher to get clarity on the issues withregard to the proviso to sub-section (2)of Section 143 as well as proviso tosub-section (2) of Section 148 of theAct of 1961. 10. Let this matter be listed on05.08.2025 under the same heading.” 8. Today, when the writ application has been taken up for consideration, learned Senior Standing Counsel for theDepartment has placed before us the proviso to sub-section 2 ofSection 143 which was existing in the statute book during therelevant year. We reproduce sub-section (2) of Section 143 withproviso herein for a ready reference:- “(2) Where a return has been furnished undersection 139, or in response to a notice undersub-section (1) of section 142, the AssessingOfficer or the prescribed income-tax authority,as the case may be, if, considers it necessaryor expedient to ensure that the assessee has notunderstated the income or has not computedexcessive loss or has not under-paid the tax inany manner, shall serve on the assessee anotice requiring him, on a date to be specifiedtherein, either to attend the office of theAssessing Officer or to produce, or cause to beproduced before the Assessing Officer anyevidence on which the assessee may rely insupport of the return: Provided that no notice under this sub-sectionshall be served on the assessee after the expiryof six months from the end of the financialyear in which the return is furnished.” 9. Learned Senior Standing Counsel has fairly submitted before this Court that in this case, the proviso to sub-section (2) of Section 143 would not be applicable. Thepetitioner had already submitted her return on 28.08.2021 i.e.within five months from the date of issuance of notice underSection 148 (Annexure ‘P/1’ to the writ application), in suchcircumstance, a notice under sub-section (2) of Section 143 ofthe Act of 1961 was mandatory. It is submitted that admittedlyin this case, no notice under sub-section (2) of Section 143 ofthe Act of 1961 has ever been issued much less served upon thepetitioner. 10. In its order dated 30.07.2025, this Court has takennote of the judicial pronouncements on the subject. The standtaken today on behalf of the Department would lead to concludethat the ratio of the judgment of the Hon’ble Supreme Court inthe case of Assistant Commissioner of Income-Tax Vs. HotelBlue Moon reported in (2010) 321 ITR 362 (SC) would befully applicable in this case. 11. In result, we are of the opinion that the impugnedorders are liable to be set aside for non-observance of themandatory provision of sub-section (2) of Section 143 of the Actof 1961. Since the writ application succeeds on this solitaryground, this Court need not go into the other contentions raised lekhi/- U on behalf of the petitioner. 12. The impugned orders are set aside. The writ application is allowed. 13. There will, however, be no cost. (Rajeev Ranjan Prasad, J) (Ajit Kumar, J)