Wp/7949/2022 Of M/S.hemang Resources Limited v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.04.2022 CORAM THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P.NO.7949 OF 2022ANDW.M.P.NOS.7945 & 7946 OF 2022 M/s.Hemang Resources Limited,Rep. by its Authorised SignatoryKomal J.Thakker,Flat No.A2, 99, Harrington Court,Harrington Road, Chetpet,Chennai - 600 031. ... Petitioner .Vs. 1. The Assistant Commissioner of Income Tax,Corporate Circle – 2(1), Chennai,Wanaparthy Block, No.121, Mahatma Gandhi Road,Nungambakkam, Chennai - 34.Corporate Circle – 2(1), Chennai,Wanaparthy Block, No.121, Mahatma Gandhi Road,Nungambakkam, Chennai - 34. 2. National Faceless Assessment Centre, Delhi,Rep. by Additional/Joint/Deputy/Assistant Commissioner of Income Tax,Room No.401, 2nd Floor, E-Ramp,Jawaharlal Nehru Stadium,Delhi - 110 003. ... Respondents PRAYER:- Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a Writ of Certiorari to call forthe impugned notice dated 31.03.2021 issued under Section 148 ofthe Income Tax Act, 1961 in PAN: for assessmentyear 2016-17 having DIN and Notice No.ITBA/AST/S/148/2020-21/1032088172(1) issued by the first respondent and theconsequential proceedings dated 21.03.2022 and 25.03.2022 havingDIN and Letter No.ITBA/AST/F/17/2021-22/1041201384(1) andITBA/AST/F/2021022/1041542664(1) respectively, issued by thesecond respondent and quash the same as illegal. ORDER The prayer sought for herein is for a Writ of Certiorari tocall for the impugned notice dated 31.03.2021 issued underSection 148 of the Income Tax Act, 1961 in PAN:AAACB6750Dfor assessment year 2016-17 having DIN and Notice No.ITBA/AST/S/148/2020-21/1032088172(1) issued by the first respondent and theconsequential proceedings dated 21.03.2022 and 25.03.2022 havingDIN and Letter No.ITBA/AST/F/17/2021-22/1041201384(1) andITBA/AST/F/2021022/1041542664(1) respectively, issued by thesecond respondent and quash the same as illegal. 2. The petitioner is the assessee under the respondents. Inrespect of the assessment year 2016-2017, in order to reopen theassessment under Section 147 of the Income Tax Act, 1961 [inshort, 'the Act'], notice under Section 148 of the Act wasissued on 31.03.2021. 3. Thereafter, after filing return, reasons were asked forby the assessee and the reasons had also been supplied by theRevenue to the assessee, who on receipt of the same, raisedobjections. Those objections having been considered, wererejected through the order dated 21.03.2022. Challenging thisorder, the present writ petition has been filed. 4. When the writ petition is taken up for admission, Ms.HemaMuralikrishnan, learned senior standing counsel for the Revenue,on instructions, would submit that in the meanwhile theauthority i.e., the assessing authority has completed theassessment and passed the assessment order under Section 147 ofthe Act. 5. In view of the said development where assessment orderitself had been passed, this Court is of the view that thepetitioner can be relegated to the Appellate Authority tochallenge the assessment order. 6. However, Mr.K.Ravi, learned counsel for the petitionerwould point out that the very notice under Section 148 of theAct though was dated 31.03.2021, it has been sent only on01.04.2021 at 06.52 hours. Therefore, it cannot be construed asa notice within the meaning of Section 148 as there has been anamendment under Section 148A of the Act which came into effectfrom 01.04.2021 at 00.00 hours on 01.04.2021. Therefore, this https://hcservices.ecourts.gov.in/hcservices/ notice itself is bad in law as per the Division Bench decisionof this Court as well as various High Courts. Therefore, on thatground, the petitioner still insists that these orders which areimpugned herein are liable to be set aside unmindful of thesubsequent assessment order passed by the assessing authority. 6. However, Mr.K.Ravi, learned counsel for the petitionerwould point out that the very notice under Section 148 of theAct though was dated 31.03.2021, it has been sent only on01.04.2021 at 06.52 hours. Therefore, it cannot be construed asa notice within the meaning of Section 148 as there has been anamendment under Section 148A of the Act which came into effectfrom 01.04.2021 at 00.00 hours on 01.04.2021. Therefore, this https://hcservices.ecourts.gov.in/hcservices/ notice itself is bad in law as per the Division Bench decisionof this Court as well as various High Courts. Therefore, on thatground, the petitioner still insists that these orders which areimpugned herein are liable to be set aside unmindful of thesubsequent assessment order passed by the assessing authority. 7. I have considered the said rival submissions made by thelearned counsel appearing for both sides and have perused thematerials placed before this Court. 8. Insofar as the plea now raised by the learned counsel forthe petitioner that the notice under Section 148 of the Actthough has been dated 31.03.2021, which has been sent only at06.52 hours on 01.04.2021 can also be raised as a preliminaryissue before the Appellate Authority while challenging theassessment order that has been passed now. If such a preliminaryissue is raised, the same shall be decided by the AppellateAuthority as a preliminary issue before going into the merits ofthe assessment order. 9. In that view of the matter, this Court is inclined todispose of the writ petition with the following orders: (i) That the petitioner is relegated to gobefore the Appellate Authority to challenge theassessment order which has subsequently been passedpursuant to the impugned orders herein. While filingan appeal, it is open to the petitioner to raise apoint as a preliminary issue that the Section 148notice itself has been issued on 01.04.2021 at 06.52hours, therefore, it is not a valid 148 notice. Theobjection to be raised in this regard should beobjectively considered based on which whether theassessment order under Section 147 of the Act is badin law or not can also be decided. (ii) If such a plea is raised by the petitionerbefore the Appellate Authority, the same shall bedecided by the Appellate Authority as a preliminaryissue before going into the merits of the assessmentorder. (iii) In this context, if any stay petition isfiled by the petitioner along with the appeal, thestay petition also can be decided along with thepreliminary issue considering the merits of the caseas indicated above and accordingly quietus can begiven to the preliminary issue raised by thepetitioner. 10. With these observations and directions, by relegatingthe petitioner to go before the Appellate Authority, this writpetition is disposed of. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/- Assistant Registrar(CS II)//True Copy// Sub Assistant Registrar mmi/spTo1.The Assistant Commissioner of Income Tax,Corporate Circle – 2(1), Chennai,Wanaparthy Block, No.121, Mahatma Gandhi Road,Nungambakkam, Chennai - 34.2.The Additional/Joint/Deputy/Assistant Commissioner of Income Tax,National Faceless Assessment CentreRoom No.401, 2nd Floor, E-Ramp,Jawaharlal Nehru Stadium,Delhi - 110 003. +1cc to Mr.K.Ravi, Advocate, S.R.No.22305+1cc to Mrs.Hema Muralikrishnan, Advocate, S.R.No.22496 W.P.NO.7949 OF 2022 PL(CO)PBS/24/06/2022