+ W.p.(C) v. Assistant Commissioner Of Income Tax Circle Int Tax 2 2 1 & Ors

$~43 IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 17466/2024 & CM Nos. 74277/2024 & 74278/2024RAKESH LOOMBA (THROUGH CONSTITUTED POWER OFATTIRNEY HOLDER TEJASVI CHAUDHARY).....PetitionerRAKESH LOOMBA (THROUGH CONSTITUTED POWER OFATTIRNEY HOLDER TEJASVI CHAUDHARY).....Petitioner Through:Mr. Sachit Jolly, Senior Advocate withMrs.ManshaAnand,Mr.AdityaRathore and Mr. Abhyudaya ShankarBajpaiandMr.TejasviChaudhry,Advocates.Mrs.ManshaAnand,Mr.AdityaRathore and Mr. Abhyudaya ShankarBajpaiandMr.TejasviChaudhry,Advocates. Versus ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE INTTAX 2 2 1 & ORS......RespondentsThrough:Mr. Puneet Rai, Mr. Ashvini Kumar,Mr. Rishabh Nangia and Mr. Akhil Jain,Advocates.TAX 2 2 1 & ORS......RespondentsThrough:Mr. Puneet Rai, Mr. Ashvini Kumar,Mr. Rishabh Nangia and Mr. Akhil Jain,Advocates. CORAM:HON'BLE THE ACTING CHIEF JUSTICEHON'BLE MR. JUSTICE TUSHAR RAO GEDELA O R D E R09.01.2025 % 1.The petitioner has filed the present petition, inter alia, praying as under: “a. That this Hon’ble Court be pleased to issue a writ ofCertiorari, or any other appropriate writ, order, or directionquashingImpugnedFinalAssessmentOrderdated21.03.2024 passed under Section 147 r.w.s. 144 of the Actalongwith Impugned Demand Notice dated 21.03.2024issued under Section 156 of the Act and the ImpugnedPenalty Notice dated 21.03.2024 under Section 274 r.w.s. 271AAC(1) of the Act by the Respondent No. 2 and theconsequent proceedings initiated for the AY 2019-20.Certiorari, or any other appropriate writ, order, or directionquashingImpugnedFinalAssessmentOrderdated21.03.2024 passed under Section 147 r.w.s. 144 of the Actalongwith Impugned Demand Notice dated 21.03.2024issued under Section 156 of the Act and the ImpugnedPenalty Notice dated 21.03.2024 under Section 274 r.w.s. 271AAC(1) of the Act by the Respondent No. 2 and theconsequent proceedings initiated for the AY 2019-20. b. That this Hon’ble Court be pleased to issue a writ ofCertiorari, or any other appropriate writ, order, or directionquashing the Impugned Draft Assessment Order dated11.02.2024 passed under Section 144C(1) r.w.s. 147 of theAct. c. That this Hon’ble Court be pleased to issue a writ ofCertiorari, or any other appropriate writ, order, or direction quashingtheImpugnedShowCauseNoticedated27.02.2023, the Impugned Order dated 21.03.2023, and theImpugned Notice dated 21.03.2023, as passed by RespondentNo. 1;” 2.It is the petitioner’s case that it had not received the notice dated27.02.2023 issued under Section 148A(b) of the Income Tax Act, 1961(hereafter the Act) as the same was merely uploaded on the e-filing portal ofthe petitioner without any real time alert. Consequently, the petitioner wasunable to respond to the aforesaid notice. 3.Since no response was received by the petitioner, the Assessing Officer(AO) proceeded to pass an order dated 21.03.2023 under Section 148A(d) ofthe Act holding that it is a fit case for issuing notice under Section 148 of theAct for the assessment year (AY) 2018-19. The AO also proceeded to issuenotice dated 21.03.2023 under Section 148 of the Act requiring the petitionerto submit return for the AY 2019-20 within a period of 30 days from the dateof the issuance of the said notice. 4.Pursuant to the re assessment proceedings, a draft assessment order dated11.02.2024 was framed by the AO and thereafter, the final assessment orderdated 21.03.2024 was passed, raising a demand of ₹4,79,64,400/-. The AO also initiated penalty proceedings under Section 274 read with Section 271AAC(1)of the Act. 5.It is the petitioner’s contention that neither the order dated 21.03.2023passed under Section 148A(d) of the Act nor the notice dated 21.03.2023 issuedunder Section 148 of the Act was served upon the petitioner. It is furthercontended by the petitioner that notices dated 25.10.2023, 18.12.2023,16.01.2024 and 02.02.2024 issued under Section 142(1) of the Act were alsonot served upon the petitioner. 6.The petitioner has placed reliance on the judgment of this court in the 4.Pursuant to the re assessment proceedings, a draft assessment order dated11.02.2024 was framed by the AO and thereafter, the final assessment orderdated 21.03.2024 was passed, raising a demand of ₹4,79,64,400/-. The AO also initiated penalty proceedings under Section 274 read with Section 271AAC(1)of the Act. 5.It is the petitioner’s contention that neither the order dated 21.03.2023passed under Section 148A(d) of the Act nor the notice dated 21.03.2023 issuedunder Section 148 of the Act was served upon the petitioner. It is furthercontended by the petitioner that notices dated 25.10.2023, 18.12.2023,16.01.2024 and 02.02.2024 issued under Section 142(1) of the Act were alsonot served upon the petitioner. 6.The petitioner has placed reliance on the judgment of this court in the case of CIT v. Chetan Gupta, Neutral Citation No. 2015:DHC:7656-DBwherein this court held that in order for the AO to exercise his jurisdiction toreopen the assessment a notice under Section 148 of the Act has to bemandatorily issued to the assessee and without proper service of notice on theassessee under Section 148 of the Act, the reassessment proceedings would beinvalid and liable to be quashed. Further in Suman Jeet Aggarwal v. ITO &Ors., 2022 SCC OnLine Del 3141, this court made the observation to the effectthat uploading of the notice on the e-filing portal of the assessee would beconsidered as valid service only when the Department has issued a real timealert as provisioned in Section 144B(6)(ii)(a) of the Act. 7.Mr. Rai, learned counsel appearing for the Revenue fairly states that thepetitioner may be given one more opportunity to respond to the notice dated19.03.2022 without going into the question whether the earlier notice wasserved on the petitioner or not. 8.In view of the above, the impugned order dated 21.03.2023 passed underSection 148A(d) of the Act as well as notice dated 21.02.2023 issued underSection 148 of the Act are set aside. The consequent draft assessment orderdated 11.02.2024 and the Final Assessment order dated 21.03.2024 are also setaside. 9.The petitioner may file its response to the notice issued under Section148A(b) of the Act within a period of four weeks from date. The AO shallconsider the same and pass an appropriate order, according to the provision asapplicable prior to 01.09.2024, within a period of four weeks thereafter. In theevent, the AO considers that it is a fit case for issuing notice under Section 148of the Act, it will obtain necessary approval from the concerned Commissionerof Income Tax as was the requirement at the material time. 10.The petition is disposed of in the aforesaid terms. Pending applicationalso stands disposed of. VIBHU BAKHRU, ACJ TUSHAR RAO GEDELA, J JANUARY 09, 2025Click here to check corrigendum, if any