Wp/5235/2024 Of Mr. Bheemgopal Rao Vulishe v. The Assistant Commissioner Of Income Tax

HIGH COURT FOR THE STATE AT HYDERABAD(Special Original Jurisdiction) WEDNESDAY, THE TWENTY TWO IHOUSAND AND TWENTY PRESENT THE HONOURABLE SRI JUSTICE [P.SAM KOSHY]ANDTHE HONOURABLE SRI JUSTICE [N.TUKARAMJI] WRIT PETITION NO: 5235 OF 2024 Between: Mr. Bheemgopal Rao [Vulishe, ][S/o. ][Mr. ][V. ][Bhagvantha ][R19' ].aO-ed [7.4 ].y.ears, [Occ ][:]Retired Go''Teinment Employee, [Rl/o.4-1-1'10, ][Karimnagar ][Club Road, ][Karimnagar ][-]505 001 , Telangana. .....PETITIONER AND 'I . The Assistant Commissioner of lncome Tax, Circle 2, Karimnagar, lncomeTax Office, Aaykar Bhawan, [Near Natraj ][Theatre ][- 505 ][001 , ][Karimnagar,]Telangana.Tax Office, Aaykar Bhawan, [Near Natraj ][Theatre ][- 505 ][001 , ][Karimnagar,]Telangana. 2. The Principal Chief Commissioner [of lncome Tax, Andhra Pradesh ][and]Telangand, Hyderabad Room [No.922,91h ][Floor, ] [Block, ][l. T. ][Towers, ][10-2-]3, ACGuards, Hyderabad [- ]500 [004, ][Telangana.]Telangand, Hyderabad Room [No.922,91h ][Floor, ] [Block, ][l. T. ][Towers, ][10-2-]3, ACGuards, Hyderabad [- ]500 [004, ][Telangana.] 3- Assessment Unit, [lncome ][Tax. ][Department, National ][e- ][Assessment Center']New Delhi, Room No. [4O1 ],2"o [Floor, E- Rarnp, Jawaharlal Nehru Stadium']New Delhi - 110 003.New Delhi, Room No. [4O1 ],2"o [Floor, E- Rarnp, Jawaharlal Nehru Stadium']New Delhi - 110 003. .....RESPONDENTS Petition Under Article 226 of the Constitution [of ][lndia ][praying ][that in ][the]circumstances stated in [the ][affidavit ][filed ][therewith, ][the ][High Court ][may ][be]pleased to issue a Writ of Mandamus or any [other ][appropriate ][Writ, ][Order ][or]Direction, declaring [that ][the order ][passed ][by ][the ][1"t Respondent, ][uls ][147 ][rlw]Sec. 144 r/w Sec. 1448 [oI the ][lncome Tax ][Act, ][1961 ][, ][dated ][12.02.2024' ][bearing]DIN and Notice No. ITBA/ [AST/S/14712023- 2411060828794(1), ][for ][the]Assessment Year 2015 - [16 ][as arbitrary, ][illegal, barred by ][limitation, ][bad ][in ][law,]void- ab- initio, violative of [the ][principles ][of ][natural ][justice, apart from ][being] violative of Articles 14, 19(1Xg) and [265 ][of ][the ][constitution ][of ][lndia and sec]148A of the lncome Tax Act, [1961 ], [and ][to ][consequently set aside ][the ][same ][in]the interests of [justice.] I.A.NO:1 OF 2024 Petition Under Section [151 CPC ][praying ][that ][in the ][circumstances ][stated]in the affidavit filed in support of the [petition, ][the ][High ][Court ][may ][be ][pleased ][to]stay all further [proceedings, including any recovery, pursuant ][to ][order passed ][by]the 1st Respondent, u/s [147 ][rlw Sec. ][144 ][r/w Sec. ][1448 ][of the ][lncome Tax ][Act,]'1961, dated 12.02.2024, bearing DIN and Notice No. ITBA/AST/S/14712023'24t1060828794(1), [for the Assessment Year 2015 ][- ][16, pending ][disposal ][of ][the]above writ [petition.] Counsel for the Petitioner [: ] [A.V.A.SIVA KARTIKEYA] Counsel for the Respondents [: ][Ms ][SUNDARI R.PISUPATI (SENIOR SC ] INCOME TAX DEPT) The Court made the following ORDER THE HONOURABLE SRI JUSTICE [P.SAM KOSHY]AND THE HONOURABLE SRI JUSTICE N.TUKARAMJIWRIT PETITION No.5235 OF 2o24 ORDER:lper IIo n'ble [Sn ]Justice [P.SAM ][KOSHY)] Heard Mr.A.V.A.Siva Kartikeya, [learned counsel ][for]the petitioner and Ms.Sundari [R. Pasupati, learned ][Senior]Standing Counsel for the [Income ][Tax ][Department ][for]respondents. Perused the material [available on record.] 2. The instant Writ Petition [has ][been ][filed ][by ][the]petitioner under Article 226 of the Constitution [of ][India]seeking for the following relief: Counsel for the Petitioner [: ] [A.V.A.SIVA KARTIKEYA] Counsel for the Respondents [: ][Ms ][SUNDARI R.PISUPATI (SENIOR SC ] INCOME TAX DEPT) The Court made the following ORDER THE HONOURABLE SRI JUSTICE [P.SAM KOSHY]AND THE HONOURABLE SRI JUSTICE N.TUKARAMJIWRIT PETITION No.5235 OF 2o24 ORDER:lper IIo n'ble [Sn ]Justice [P.SAM ][KOSHY)] Heard Mr.A.V.A.Siva Kartikeya, [learned counsel ][for]the petitioner and Ms.Sundari [R. Pasupati, learned ][Senior]Standing Counsel for the [Income ][Tax ][Department ][for]respondents. Perused the material [available on record.] 2. The instant Writ Petition [has ][been ][filed ][by ][the]petitioner under Article 226 of the Constitution [of ][India]seeking for the following relief: 'to issue a Writ [of Mandamus ][or ][anA ][other ][appropriate ][Writ]Ord.er or Direction declaring that the [order ][possed by ][the ][lst]Respondent u/s 147 r/ut Sec [144 ]r/w [Sec ][1448 ][of ][the]Incom.e Tax Act 7961 dated 12/02/2024 [beaing ][DIN and]Notice No ITBA/ AST/S/ 147/2023 [24/ ][1060828794(1) ]forthe Assessment Year 2O15 16 os arbitrory [iltegal ][baned ][bg]limitation bad in Lau uoid ab initio [uiolatiue ][of ][the ][principles]of natural [justice ]apart from [being ][uiolatiue ][of Articles ][14]19(1)(g) and 265 of the Constitution [of ][India and ][Sec ][148A ][of]th.e Income Tax Act 1961 and to [conseELentlA ][set oside ][the]same in tfle interests of iustice and [to ][pa,ss ][such other order]or orders as this Honble Court [maA deems ]fit [just ][ond ][proper]in th-e ciratm.stances of the [case".] 3. One of the contentions that the petitioner has raisedin the present Writ Petition is that under the amendedprovisions of the Act which came into effect fromOl .O4.2021 , the respondents, while proceeding underSection 148 of the Act, were required to issue notice underSection 148A and provide an opportunity of hearing to theassessee. As per the amended provision of law, theproceedings to be drawn are also in a faceless marlner.4. Whereas, learned counsel for the petitionercontended that, in the instant case, reopening has beeninitiated by the Jurisdictional Assessing Officer. In supportof his contention, he relied upon the recent judgmentrendered by this very Bench in WP.No.259O3 of 2022 &batch, dated 14.O9.2023 wherein this Court disposed of thebatch of writ petitions to the limited extent. 5. On the other hand, learned Standing Counsel for therespondent-Department does not dispute that the saidobjection was decided in the aforesaid batch of WritPetitions. However, he further contended that apart fromthe aforesaid objection, there have been othel various PSK,J & NTR,J objections also which the petitioner has raised in the writpetition. 6. So far as this contention of the lea_rned counsel for the respondent-Department is concerned, this Bench, whiledisposing of said batch of writ petitions, had taken note ofthe same at pa-ragraph Nos.37 & 38 which are reproducedherein under:disposing of said batch of writ petitions, had taken note ofthe same at pa-ragraph Nos.37 & 38 which are reproducedherein under: "37. The preliminary objection raised by thE petitioneris sustained and all these utrit petitions stands allowedon this uery jurisdictional issue. Since the tmpugnednotices and. orders are getting quashed on the point ofjurtsdiction, u)e are not inclined to proceed furtlrcr and-decide the other issues raised bg the petitioner uhtchstands reserued to be raised and contended_ tn anapp rop riate p ro ceeding s. " "38. Since the Hon'ble Supreme Court had, in tlrc caseof Ashish Agaru-tal, supra, as a one-ttme mea.sureexercising tLte pouers under Article 142 of theConstihttion of India, permitted the Reuenue to proceedunder tlrc substituted prouisions, and this Courtallouing tle petitions onlg on the procedural flaw, tleright confened on the Reuenue would remain reseruedto proceed further if ttteg so utont from ttrc stage of theorder of the Supreme Court in tle case of AshishAganaa| supra. " 7. In view of the siune, we are inclined to allow the "38. Since the Hon'ble Supreme Court had, in tlrc caseof Ashish Agaru-tal, supra, as a one-ttme mea.sureexercising tLte pouers under Article 142 of theConstihttion of India, permitted the Reuenue to proceedunder tlrc substituted prouisions, and this Courtallouing tle petitions onlg on the procedural flaw, tleright confened on the Reuenue would remain reseruedto proceed further if ttteg so utont from ttrc stage of theorder of the Supreme Court in tle case of AshishAganaa| supra. " 7. In view of the siune, we are inclined to allow the present writ petition also on similar terms. Accordingly, thepresent Writ Petition stands allowed on the objection of thepresent Writ Petition stands allowed on the objection of the petitioner that the proceedings have not been drawn inaccordance with the amended provision but under theun-amended provision which is otherwise not sustainable. 8. As has been held by this Bench in the aforesaid batchmatters, the rights of the parties would stand reserved as isenvisaged at paragraph Nos.37 & 38 of the said orderpassed in the batch of writ petitions. No order as to costs.Consequently, miscellaneous petitions pending, if any,shall stand closed. SD/. G. SIREESHAASSISTANT REGISTRAR ,TRUE COPYII SECTION OFFICER To 1. The Assistant Commissioner of lncome Tax, Circle 2, Karimnagar, lncomeTelangana.Tax Office, Aaykar Bhawan, Near Natraj Theatre - 505 001 , Kaiimnagar,Telangana.Tax Office, Aaykar Bhawan, Near Natraj Theatre - 505 001 , Kaiimnagar, 2. The Principal Chief Commissioner of lncome Tax, Andhra pradesh andTelangana, Hyderabad Room No. 922,gth Floor, B Block, l. T. Towers, 10- 2-3, AC Guards, Hyderabad - 500 004, Telangana.Telangana, Hyderabad Room No. 922,gth Floor, B Block, l. T. Towers, 10- 2-3, AC Guards, Hyderabad - 500 004, Telangana. 3. The Assessment Unit, lncome Tax Department, National e- AssessmentCenter, New Delhi, Room No. 401, 2nd Floor, E- Rarnp, Jawaharlal NehruStadium, New Delhi - 1 10 003.Center, New Delhi, Room No. 401, 2nd Floor, E- Rarnp, Jawaharlal NehruStadium, New Delhi - 1 10 003. 4. One CC to Sri A.V.A.Siva Kartikeya, Advocate tOpUCltOpUCl tOpUCl5. One CC to Ms. Sundari R Pisupati (Sr SC for tntome tax Dept) [OpUC]6. Two CD CopiesSAKKSs HIGH COURT DATED:2810212024 ORDER WP.No.5235 of 2024 ALLOWING THE W.PWITHOUT COSTS. @-r,''W I I1BESTA14:(oeJoo0 3 APn z202{at"6+t oAcOsPATcH