Wp7373.23Jud.odt v. Joshi, Jj.date : 13[Th] December, 2023

IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPUR WRIT PETITION NO. 7373 OF 2023 ...PETITIONERRavindra Reddy Katamreddy,Versus1.Deputy Commissioner of Income Tax /Assistant…RESPONDENTSCommissioner of Income Tax, Circle – Akola,2.Additional Commissioner of Income Tax / JointCommissioner of Income Tax, Range – Akola.3.The Principal Commissioner of Income Tax-1,Nagpur, Aayakar Bhawan, Civil Lines, Nagpur.4.The Principal Chief Commissioner of Income Tax,Nagpur, Aayakar Bhawan, Civil Lines,Nagpur.5.Assessment Unit, Income Tax Department, NationalFaceless Assessment Centre, N. Delhi.6.The Union of India, through its Secretary,Government of India, New Delhi – 110 002.7.Central Board of Direct Taxes, through Chairman,Ministry of Finance, North Block, New Delhi. Mr. Kapil A. Hirani, Advocate for the petitioner.Mr. Anand Parchure, Advocate for respondent nos.1 to 7 P. C. CORAM : SMT. ANUJA PRABHUDESSAI, AND MRS. VRUSHALI V. JOSHI, JJ.DATE : 13[th] DECEMBER, 2023. 1. In this petition, which relates to assessment year 2016-17the petitioner has raised a challenge to the notice dated 29.06.2021 issued by respondent no.1 under Section 148A(b), order dated21.07.2022 issued by respondent no.1 under section 148A(d), noticedated 21.07.2022 under section 148 and the assessment order dated27.05.2023 issued by respondent no.5 under section 147 r/w section144B of the Income Tax Act, 1961 (hereinafter referred to as ‘the I.T.Act’) and further sought direction against the respondents to forebearfrom giving effect to and/or taking steps pursuant to the assessmentorder dated 27.05.2023 passed under Section 147 r/w section 144 B ofthe Act. 2.The challenge is essentially, on the ground that Section 148notice which has been issued by respondent No.2 after the statutoryperiod of four years, is not in the mandatory procedure prescribedunder the Act. Learned counsel for the petitioner submits that the caseis fully covered by the decisions of this Court at Principle Seat in WritPetition No. 4888 of 2022 [Siemens Financial Services Pvt. Ltd. .vs.Deputy Commissioner of Income Tax and others], decided on25.08.2023 and in Writ Petition No.5102/2022 [Crompton GreavesConsumer Electrical Ltd. .vs. Assistant Commissioner of Income Taxand others], decided on 25.08.2023. 3.Learned counsel for the respondents submits that therespondents intends challenging the judgment in Siemens FinancialServices Pvt. Ltd. .vs. Deputy Commissioner of Income Tax and othersbefore the Apex Court. It is contended that notice dated 29.06.2021under Section 148 of the Act issued as per the old provisions has beensaved by the decision of the Apex Court in the case of Union of Indiaand others Vs. Ashish Agrawal, reported in (2023) 1 SCC 617 holdingthat the same would be treated as show cause notice under Section148 A (b) of the I.T. Act. It is contended that the notices are legal andvalid and are issued by following due procedure under the Act. Therespondent has also raised a plea of alternative efficacious remedy. 4.As regards the issue of alternative remedy, the coordinateBench of this Court in Arvind Sahdeo Gupta vs. Income Tax Officer,Ward-1 and Ors. (W.P. No.4793 of 2021) has observed that if ajurisdictional issue is raised and the controversy is purely a legal onewhich does not involve any disputed question of fact, then the writpetition does not deserve to be thrown out threshold. The decision ofthe Apex Court in Commissioner of Income Tax and others Vs. ChhabilDass Agarwal reported in (2014) 1 SCC 603was distinguished by observing that the challenge in the said case was to the order ofassessment, whereas the challenge before the Court was to the noticeunder Section 148 of the IT Act against which no statutory remedy isavailable. In the instant case, the challenge raised by the petitioner,that reopening without prior approval of Commissioner of Income Tax,goes to the root of the matter and hence the petition cannot be thrownout on the ground of alternative remedy. observing that the challenge in the said case was to the order ofassessment, whereas the challenge before the Court was to the noticeunder Section 148 of the IT Act against which no statutory remedy isavailable. In the instant case, the challenge raised by the petitioner,that reopening without prior approval of Commissioner of Income Tax,goes to the root of the matter and hence the petition cannot be thrownout on the ground of alternative remedy. 5.As regards the sanction, in Siemens Financial Services Pvt.Ltd. (supra) the Division Bench of this Court at the Principal Seat hasheld that the sanction ought to have been granted under Section 151(ii) and not under Section 151(i) of the Act. Relying upon the saiddecision in Crompton Greaves Consumer Electrical Ltd. (Supra) whichrelated to the assessment year 2016-17, the Division Bench of thisCourt has quashed order under Section 148 A (d) as well as noticeunder Section 148 of the IT Act, since the authority which sanctionedissuance of order under Section 148 A (d) was the one under Section151(i) and not under Section 151 (ii) of the Act. The case in hand issquarely covered by the decision of Siemens Financial Services Pvt.Ltd. (supra).The decisions relied upon by learned counsel for the respondents in support of the said contentions have already beenconsidered by the Division Bench of this Court in the said decision. 6.Hence, without going into the other issues or groundsraised, the petition stands disposed of in view of the judgment inSiemens Financial Services Pvt. Ltd. (supra). The orders passed underSection 148(A)(d) as well as the notices issued under Section 148 ofthe I.T. Act are hereby quashed and set aside. No order as to costs. [MRS.VRUSHALI V. JOSHI, J.] [SMT. ANUJA PRABHUDESSAI J.]