Wpt v. The Principal Commissioner Of Income Tax, Raipur-2, Aayakarbhavan, Civil Lines, Raipur.bhavan, Civil Lines, Raipur

1 AFR HIGH COURT of CHHATTISGARH, BILASPUR WPT No. 245 of 2022 Order Reserved on : 10.05.2023 Order Delivered on : 15.06.2023 Gouri Construction, 10, Yashobal Complex, Ramsagar Para, Raipur,A partnership Firm through Partner Sumeet Agrawal, S/o ShriMahavir Prasad Agrawal, aged about 45 years, resident of 10,Yashobal Complex, Ramsagar Para, Raipur.A partnership Firm through Partner Sumeet Agrawal, S/o ShriMahavir Prasad Agrawal, aged about 45 years, resident of 10,Yashobal Complex, Ramsagar Para, Raipur. ------Petitioner VERSUS 1. The Principal Commissioner of Income Tax, Raipur-2, AayakarBhavan, Civil Lines, Raipur.Bhavan, Civil Lines, Raipur. 2. The Assessing Officer, National Faceless Assessment Centre, Delhi. 3. The Assistant Commissioner of Income Tax, Circle 1(1), Raipur, C.G. -------Respondents (cause title is taken from Case Information System) For Petitioner : Mr. Moolchand Jain, Advocate For Respondents : Mr. Ajay Kumrani, Advocate on behalf of Mr. Amit Chaudhary, Advocate Hon'ble Shri Parth Prateem Sahu, Judge C.A.V. ORDER 1. Petitioner has filed this writ petition seeking following reliefs. “10.1 Calling the records of the case. 10.2 Quashing the Notice u/s 148 issued on09.06.2021 (Anneuxre P-1) and assessmentorder dated 30.03.2022 (Annexure P-8)passed by the respondent no. 2. 10.3 Directing the Respondents to not toproceed further against the petitioner in thematter of tax levied and penalty proceedingsinitiated. 10.4 Any other relief, which this Hon’bleCourt deems fit may also be granted.” 2. Facts relevant for disposal of this petition are that petitioner submitted return of the income tax for the assessment year 2013-14 declaring total income of ₹ 8,69,240/-. On 09.06.2021, Respondent No. 3 issued notice to petitioner under Section 148 of the Income Tax Act, 1961 (henceforth “Act of 1961”) stating that incomechargeable to tax for the assessment year 2013-14 has escapedassessment. During the pendency of proceedings of reassessment,petitioner submitted an application on 02.03.2022 to the AssistantCommissioner of Income Tax (Assessing Officer) requesting toprovide certified copy of the reasons recorded under Section 148(2)of the Act of1961 alongwith documents, statement andinvestigation reports etc. referred in the reasons if any and thesanction taken under Section 151 of the Act to file submissions tocompletely defend the case. Application was considered anddecided on 25.03.2022 and considering the decision in the case ofAcorus Unitech Wireless Pvt. Ltd. vs. ACIT [(2014) 43taxmann.com 62 (Delhi)] wherein it was held that in terms ofSection 148, law only requires that information or material on whichAssessing Officer records his or her satisfaction has to becommunicated to assessee, withoutmandating disclosure of anyspecific document. Draft assessment order under Section 147 readwith Section 144B was passed on 25.03.2022, on the same dateshow-cause notice was issued and thereafter the assessment orderunder Section 147 r/w Section 144B of the Act of 1961 was passedon 30.03.2022. Petitioner filed an application under Section 154 ofthe Act of 1961 for rectification of the mistake in the order dated30.03.2022 in the light of decision of Hon’ble Supreme Court in thecase of Union of India vs. Ashish Agrawal [(2023) 1 SCC 617].The said application came to be decided on 10.09.2022, rejectingthe same, observing that the provisions of Section 154 of the Act of1961 can be invoked only when there is mistake apparent on theface of record must be obvious and patent mistake and notsomething which can be established by long drawn process ofreasoning. It is thereafter the writ petition was filed on 12.10.2022. 3 3. Mr. M.C. Jain, learned counsel for petitioner would submit that the 3 3. Mr. M.C. Jain, learned counsel for petitioner would submit that the notice under Section 148 of the Act of 1961 was issued on09.06.2021. Before the date of issuance of notice the Parliamentintroduced reformative changes of Sections 147 to 149 and 151 ofthe Act of 1961 governing reassessment proceedings by way ofFinance Act, 2021 which was passed on 28.03.2021. The amendedprovisions under Sections 147 to 149 and 151 made applicablew.e.f. 01.04.2021. Respondent No. 3 issued notice under Section148 of the Act on 09.06.2021 which is after coming into force theamended provisions of Sections 147 to 149 and 151 but theprocedure provided under Section 148 was not followed. It iscontended that under the amended provisions safeguards havebeen provided in favour of assessee. Under the amendedprovisions, before issuance of the notice under Section 148, therespondents are required to conduct enquiry with prior approval ofthe specified authority as provided under Section 148(A)(a) of theAct of 1961 and after providing opportunity the authority is to decidethe issue based on the material available on record including thereply whether it is a fit case to issue notice under Section 148 bypassing an order. No proceeding as provided under Section 148(A)(a) is followed and no order under Section 148(A)(d) is passed. Healso pointed out that the applicability of the amended provisionsunder Section 147 to 149 was discussed by Hon’ble Supreme Courtin the case of Ashish Agrawal (supra) and held that the noticeissued under Section 148 after 01.04.2021 shall be deemed to havebeen issued under Section 148-A of the Act of 1961 to pass orderunder Section 148(A)(d) and therefore the petitioner filed anapplication under Section 154 of the Act of 1961 requesting forrectification of the order dated 30.03.2022 which also came to bedismissed. It is further contended that as the notice under Section 148 issued by Respondent No. 3 is in violation of the provisionsunder Section 148A, 148A(b) and 148A(d), without providing theinformation and material relied upon by the Revenue and thereforethe order of assessment is in violation of principle of natural justice.The order has been passed without giving proper opportunity ofhearing as the notice under Section 148 of the Act of 1961 wasissued without following procedure as provided under Section 148Aand the order of assessment, Annexure P-8, is in violation ofprinciple of natural justice, hence, writ petition be allowed. 4. Mr. Ajay Kumrani, learned counsel for respondents vehementlyopposed the submission of counsel for petitioner and would submitthat as the assessment order is passed, the order is appealableunder Section 246(A) of the Act of 1961 and therefore writ petition isnot maintainable. He relied upon the decision of Hon’ble SupremeCourt in the case of Commissioner of Income Tax vs. ChhabilDass Agarwal [(2013) 36 taxmann.com SC 36 (SC)], M/sSouthern Ispat and Energy Ltd. vs. Union of India and others[Writ Appeal No. 248/2022, decided on 08.07.2022] and M/s SatyaVidya Real Estate Private Limited vs. ACIT [WPT No. 87/2022,decided on 30.03.2022]opposed the submission of counsel for petitioner and would submitthat as the assessment order is passed, the order is appealableunder Section 246(A) of the Act of 1961 and therefore writ petition isnot maintainable. He relied upon the decision of Hon’ble SupremeCourt in the case of Commissioner of Income Tax vs. ChhabilDass Agarwal [(2013) 36 taxmann.com SC 36 (SC)], M/sSouthern Ispat and Energy Ltd. vs. Union of India and others[Writ Appeal No. 248/2022, decided on 08.07.2022] and M/s SatyaVidya Real Estate Private Limited vs. ACIT [WPT No. 87/2022,decided on 30.03.2022] 5. I have heard learned counsel for the parties on both sides and alsoperused the documents placed on record. perused the documents placed on record. 5. I have heard learned counsel for the parties on both sides and alsoperused the documents placed on record. perused the documents placed on record. 6. Undisputedly, the provision under Section 148 of the Act of 1961came to be amended w.e.f. 01.04.2021 and notice under Section148 of the Act was issued on 09.06.2021 ie., the notice was issuedafter the amended provisions under Section 148 came into forceand insertion of Section 148A. For convenience, I find itappropriate to extract the amended provisions for ready reference: came to be amended w.e.f. 01.04.2021 and notice under Section148 of the Act was issued on 09.06.2021 ie., the notice was issuedafter the amended provisions under Section 148 came into forceand insertion of Section 148A. For convenience, I find itappropriate to extract the amended provisions for ready reference: “147. Income escaping assessment.- If anyincome chargeable to tax, in the case of anincome chargeable to tax, in the case of an 5 assessee, has escaped assessment for anyassessment year, the Assessing Officer may,subject to the provisions of sections 148to 153,assess or reassess such income or recompute theloss or the depreciation allowance or any otherallowance or deduction for such assessment year(hereafter in this section and in sections 148to153referred to as the relevant assessment year). Explanation.—For the purposes of assessment orreassessment or recomputation under this section,the Assessing Officer may assess or reassess theincome in respect of any issue, which has escapedassessment, and such issue comes to his noticesubsequently in the course of the proceedings underthis section, irrespective of the fact that theprovisions of section 148Ahave not been compliedwith.] 148. Issue of notice where income hasescaped assessment. - Before making theassessment, reassessment or recomputation undersection 147, and subject to the provisions ofsection 148A, the Assessing Officer shall serve onthe assessee a notice, along with a copy of theorder passed, if required, under clause (d) ofsection 148A, requiring him to furnish within15[a period of three months from the end of themonth in which such notice is issued, or suchfurther period as may be allowed by theAssessing Officer on the basis of an applicationmade in this regard by the assessee], a return ofhis income or the income of any other person inrespect of which he is assessable under this Actduring the previous year corresponding to therelevant assessment year, in the prescribed formand verified in the prescribed manner and settingforth such other particulars as may be prescribed;and the provisions of this Act shall, so far as maybe, apply accordingly as if such return were areturn required to be furnished under section 139: Provided that no notice under this section shall beissued unless there is information with the AssessingOfficer which suggests that the income chargeable totax has escaped assessment in the case of theassessee for the relevant assessment year and theAssessing Officer has obtained prior approval of thespecified authority to issue such notice: 16[Provided further that no such approval shall berequired where the Assessing Officer, with the priorapproval of the specified authority, has passed anorder under clause (d) of section 148A to the effectrequired where the Assessing Officer, with the priorapproval of the specified authority, has passed anorder under clause (d) of section 148A to the effect 6 that it is a fit case to issue a notice under thissection:] 17[Provided alsothat any return of income, requiredto be furnished by an assessee under this sectionand furnished beyond the period allowed shall notbe deemed to be a return undersection 139.]to be furnished by an assessee under this sectionand furnished beyond the period allowed shall notbe deemed to be a return undersection 139.] 16[Provided further that no such approval shall berequired where the Assessing Officer, with the priorapproval of the specified authority, has passed anorder under clause (d) of section 148A to the effectrequired where the Assessing Officer, with the priorapproval of the specified authority, has passed anorder under clause (d) of section 148A to the effect 6 that it is a fit case to issue a notice under thissection:] 17[Provided alsothat any return of income, requiredto be furnished by an assessee under this sectionand furnished beyond the period allowed shall notbe deemed to be a return undersection 139.]to be furnished by an assessee under this sectionand furnished beyond the period allowed shall notbe deemed to be a return undersection 139.] Explanation 1.—For the purposes of this section andsection 148A, the information with the AssessingOfficer which suggests that the income chargeable totax has escaped assessment means,— (i) any information [18][***] in the case of theassessee for the relevant assessment year inaccordance with the risk management strategyformulated by the Board from time to time;*or 19[(ii) any audit objection to the effect that theassessment in the case of the assessee for therelevant assessment year has not been made inaccordance with the provisions of this Act; or (iii) any information received under anagreement referred to in section 90or section90A of the Act; or (iv) any information made available to theAssessing Officer under the scheme notifiedunder section 135A; or (v) any information which requires action inconsequence of the order of a Tribunal or aCourt.] Explanation 2.—For the purposes of this section,where,— (i) a search is initiated under section 132orbooks of account, other documents or any assetsare requisitioned under section 132A, on or afterthe 1st day of April, 2021, in the case of theassessee; or (ii) a survey is conducted under section 133A,other than under sub-section (2A) [20][***] of thatsection, on or after the 1st day of April, 2021, inthe case of the assessee; or (iii) the Assessing Officer is satisfied, with theprior approval of the Principal Commissioner orCommissioner, that any money, bullion, jewelleryor other valuable article or thing, seized orrequisitioned under section 132 or section132Ain case of any other person on or after the 1st dayof April, 2021, belongs to the assessee; or (iv) the Assessing Officer is satisfied, with theprior approval of Principal Commissioner or 7 Commissioner, that any books of account ordocuments, seized or requisitioned under section132or section 132A in case of any other personon or after the 1st day of April, 2021, pertains orpertain to, or any information contained therein,relate to, the assessee, the Assessing Officer shall be deemed to haveinformation which suggests that the incomechargeable to tax has escaped assessment in the caseof the assessee [21][where] the search is initiated orbooks of account, other documents or any assets arerequisitioned or survey is conducted in the case ofthe assessee or money, bullion, jewellery or othervaluable article or thing or books of account ordocuments are seized or requisitioned in case of anyother person. Explanation 3.—For the purposes of this section,specified authority means the specified authorityreferred to in section 151.] 148A. Conducting inquiry, providingopportunity before issue of notice under -TheAssessing Officer shall, before issuing any noticeunder section 148,— (a) conduct any enquiry, if required, with theprior approval of specified authority, with respectto the information which suggests that the incomechargeable to tax has escaped assessment; Explanation 3.—For the purposes of this section,specified authority means the specified authorityreferred to in section 151.] 148A. Conducting inquiry, providingopportunity before issue of notice under -TheAssessing Officer shall, before issuing any noticeunder section 148,— (a) conduct any enquiry, if required, with theprior approval of specified authority, with respectto the information which suggests that the incomechargeable to tax has escaped assessment; (b) provide an opportunity of being heard to theassessee, [23][***] by serving upon him a notice toshow cause within such time, as may be specifiedin the notice, being not less than seven days andbut not exceeding thirty days from the date onwhich such notice is issued, or such time, as maybe extended by him on the basis of an applicationin this behalf, as to why a notice under section148should not be issued on the basis ofinformation which suggests that incomechargeable to tax has escaped assessment in hiscase for the relevant assessment year and resultsof enquiry conducted, if any, as per clause (a); (c) consider the reply of assessee furnished, ifany, in response to the show-cause notice referredto in clause (b); (d) decide, on the basis of material available onrecord including reply of the assessee, whether ornot it is a fit case to issue a notice under section148, by passing an order, with the prior approvalof specified authority, within one month from theend of the month in which the reply referred to in 8 clause (c) is received by him, or where no suchreply is furnished, within one month from the endof the month in which time or extended timeallowed to furnish a reply as per clause (b)expires: Provided that the provisions of this section shall notapply in a case where,— (a) a search is initiated under section 132orbooks of account, other documents or any assetsare requisitioned under section 132Ain the caseof the assessee on or after the 1st day of April,2021; or (b) the Assessing Officer is satisfied, with theprior approval of the Principal Commissioner orCommissioner that any money, bullion, jewelleryor other valuable article or thing, seized in asearch under section 132or requisitioned undersection 132A, in the case of any other person onor after the 1st day of April, 2021, belongs to theassessee; or (c) the Assessing Officer is satisfied, with theprior approval of the Principal Commissioner orCommissioner that any books of account ordocuments, seized in a search under section 132or requisitioned under section 132A, in case ofany other person on or after the 1st day of April,2021, pertains or pertain to, or any informationcontained therein, [24][relate to, the assessee; or (d) the Assessing Officer has received anyinformation under the scheme notified undersection 135Apertaining to income chargeable totax escaping assessment for any assessment yearin the case of the assessee.] Explanation.—For the purposes of this section,specified authority means the specified authorityreferred to insection 151.] 149. Time limit for notice.- (1) No notice undersection 148 shall be issued for the relevantassessment year,—(a) if three years have elapsedfrom the end of the relevant assessment year,unless the case falls under clause (b); 27[(b) if three years, but not more than ten years,have elapsed from the end of the relevantassessment year unless the Assessing Officer hasin his possession books of account or otherdocuments or evidence which reveal that theincome chargeable to tax, represented in the formof—have elapsed from the end of the relevantassessment year unless the Assessing Officer hasin his possession books of account or otherdocuments or evidence which reveal that theincome chargeable to tax, represented in the formof— 9 (i) an asset; (ii) expenditure in respect of a transaction or inrelation to an event or occasion; or (iii) an entry or entries in the books of account, 27[(b) if three years, but not more than ten years,have elapsed from the end of the relevantassessment year unless the Assessing Officer hasin his possession books of account or otherdocuments or evidence which reveal that theincome chargeable to tax, represented in the formof—have elapsed from the end of the relevantassessment year unless the Assessing Officer hasin his possession books of account or otherdocuments or evidence which reveal that theincome chargeable to tax, represented in the formof— 9 (i) an asset; (ii) expenditure in respect of a transaction or inrelation to an event or occasion; or (iii) an entry or entries in the books of account, which has escaped assessment amounts to or islikely to amount to fifty lakh rupees or more:] Provided that no notice under section 148shall beissued at any time in a case for the relevantassessment year beginning on or before 1st day ofApril, 2021, if [28][a notice under section 148orsection 153Aor section 153Ccould not have beenissued at that time on account of being beyond thetime limit specified under the provisions of clause(b) of sub-section (1) of this section or section 153Aor section 153C, as the case may be], as they stoodimmediately before the commencement of theFinance Act, 2021: Provided further that the provisions of this sub-section shall not apply in a case, where a noticeunder section 153A, or section 153Cread withsection 153A, is required to be issued in relation to asearch initiated under section 132 or books ofaccount, other documents or any assets requisitionedunder section 132A, on or before the 31st day ofMarch, 2021: 29[Provided alsothat for cases referred to inclauses (i), (iii) and (iv) of Explanation 2 tosection148, where,—clauses (i), (iii) and (iv) of Explanation 2 tosection148, where,— (a)a search is initiated undersection 132; or (b)a search under section 132for which the lastof authorisations is executed; or (c)requisition is made undersection 132A, after the 15th day of March of any financial yearand the period for issue of notice under section148expires on the 31st day of March of suchfinancial year, a period of fifteen days shall beexcluded for the purpose of computing the periodof limitation as per this section and the noticeissued under section 148in such case shall bedeemed to have been issued on the 31st day ofMarch of such financial year: Provided alsothat where the information asreferred to in Explanation 1 tosection 148 emanatesfrom a statement recorded or documents impoundedunder section 131or section 133A, as the case maybe, on or before the 31st day of March of a financialyear, in consequence of,— 10 (a)a search under section 132 which is initiated;or (b)a search under section 132 for which the lastof authorisations is executed; or (c)a requisition made under section 132A, after the 15th day of March of such financialyear, a period of fifteen days shall be excluded forthe purpose of computing the period of limitationas per this section and the notice issued underclause (b) of section 148A in such case shall bedeemed to have been issued on the 31st day ofMarch of such financial year:] Provided also that for the purposes of computingthe period of limitation as per this section, the timeor extended time allowed to the assessee, as pershow-cause notice issued under clause (b) of section148Aor the period during which the proceedingunder section 148Ais stayed by an order orinjunction of any court, shall be excluded: Provided also that where immediately after theexclusion of the period referred to in theimmediately preceding proviso, the period oflimitation available to the Assessing Officer forpassing an order under clause (d) of section 148A Provided also that for the purposes of computingthe period of limitation as per this section, the timeor extended time allowed to the assessee, as pershow-cause notice issued under clause (b) of section148Aor the period during which the proceedingunder section 148Ais stayed by an order orinjunction of any court, shall be excluded: Provided also that where immediately after theexclusion of the period referred to in theimmediately preceding proviso, the period oflimitation available to the Assessing Officer forpassing an order under clause (d) of section 148A 30[does not exceed seven days], such remainingperiod shall be extended to seven days and theperiod of limitation under this sub-section shall bedeemed to be extended accordingly.period shall be extended to seven days and theperiod of limitation under this sub-section shall bedeemed to be extended accordingly. Explanation.—For the purposes of clause (b) of thissub-section, "asset" shall include immovableproperty, being land or building or both, shares andsecurities, loans and advances, deposits in bankaccount. 31[(1A) Notwithstanding anything contained insub-section (1), where the income chargeable totax represented in the form of an asset orexpenditure in relation to an event or occasion ofthe value referred to in clause (b) of sub-section(1), has escaped the assessment and theinvestment in such asset or expenditure in relationto such event or occasion has been made orincurred, in more than one previous yearsrelevant to the assessment years within the periodreferred to in clause (b) of sub-section (1), anotice under section 148 shall be issued for everysuch assessment year for assessment,reassessment or recomputation, as the case maybe.]sub-section (1), where the income chargeable totax represented in the form of an asset orexpenditure in relation to an event or occasion ofthe value referred to in clause (b) of sub-section(1), has escaped the assessment and theinvestment in such asset or expenditure in relationto such event or occasion has been made orincurred, in more than one previous yearsrelevant to the assessment years within the periodreferred to in clause (b) of sub-section (1), anotice under section 148 shall be issued for everysuch assessment year for assessment,reassessment or recomputation, as the case maybe.] (2) The provisions of sub-section (1) as to the 11 issue of notice shall be subject to the provisionsof section 151.] 151. Sanction for issue of notice.-Specifiedauthority for the purposes of section 148andsection 148A shall be,— (i) Principal Commissioner or Principal Directoror Commissioner or Director, if three years orless than three years have elapsed from the end ofthe relevant assessment year; (ii) Principal Chief Commissioner or PrincipalDirector General or [33][***] Chief Commissioneror Director General, if more than three years haveelapsed from the end of the relevant assessmentyear:] 34[Providedthat the period of three years for thepurposes of clause (i) shall be computed aftertaking into account the period of limitation asexcluded by the third or fourth or fifth provisos orextended by the sixth proviso to sub-section (1) ofsection 149.]purposes of clause (i) shall be computed aftertaking into account the period of limitation asexcluded by the third or fourth or fifth provisos orextended by the sixth proviso to sub-section (1) ofsection 149.] 151A. Faceless assessment of income escapingassessment -(1) The Central Government maymake a scheme, by notification in the OfficialGazette, for the purposes of assessment,reassessment or recomputation under section 147or issuance of notice under section 148[35][orconducting of enquiries or issuance of show-cause notice or passing of order under section148A] or sanction for issue of such notice undersection 151, so as to impart greater efficiency,transparency and accountability by— 151A. Faceless assessment of income escapingassessment -(1) The Central Government maymake a scheme, by notification in the OfficialGazette, for the purposes of assessment,reassessment or recomputation under section 147or issuance of notice under section 148[35][orconducting of enquiries or issuance of show-cause notice or passing of order under section148A] or sanction for issue of such notice undersection 151, so as to impart greater efficiency,transparency and accountability by— (a) eliminating the interface between the income-tax authority and the assessee or any other personto the extent technologically feasible; (b) optimising utilisation of the resourcesthrough economies of scale and functionalspecialisation; (c) introducing a team-based assessment,reassessment, recomputation or issuance orsanction of notice with dynamic jurisdiction. (2) The Central Government may, for the purposeof giving effect to the scheme made under sub-section (1), by notification in the Official Gazette,direct that any of the provisions of this Act shallnot apply or shall apply with such exceptions,modifications and adaptations as may bespecified in the notification: Provided that no direction shall be issued after the 12 31st day of March, 2022. (3) Every notification issued under sub-section(1) and sub-section (2) shall, as soon as may beafter the notification is issued, be laid before eachHouse of Parliament. 7. Under the amended provisions, before issuance of notice underSection 148, the provisions under Section 148A has to bemandatorily complied with. Section 148A clearly talks aboutconducting an enquiry providing opportunity of hearing and onlyafter passing an order under Section 148A(d), notice under Section148 of the Act of 1961 can be issued. The submission of learnedcounsel for petitioner that no proceeding has been initiated underSection 148A before issuance of notice under Section 148 is notdisputed by the respondents in their reply but in the pleadings it ismentioned that the assessment proceeding is completed on30.03.2022 whereas the decision of Hon’ble Supreme Court in thecase of Ashish Agarwal (supra) was passed on 04.05.2022. 8. The amended provisions under Section 148 and 148A came intoforce w.e.f. 01.04.2021, notice under Section 148 was issued on09.06.2021 without following the procedure as provided underSection 148A. Notice under Section 148 was issued after01.04.2021 without following procedure provided under Section148A of the Act of 1961 was put to challenge before different HighCourts and the High Courts have set aside the notice under Section148 and the order of High Court was put to challenge by theRevenue before the Supreme Court which came to be decided incase of Ashish Agarwal (supra) along with other connectedmatters. Even if the judgment of Hon’ble Supreme Court waspassed on 04.05.2022, the amended provisions under Section 148and 148A came into force w.e.f. 01.04.2021 by way of Finance Act,2021 passed on 28.03.2021. The respondents were duty bound to comply with the provisions in its words and spirit as the amendedprovisions of the Act of 1961 provides safeguards to the assessee.Even the application submitted by the petitioner to provide certifiedcopy of the reasons recorded under Section 148(2) of the Act,documents, statement and investigation report referred in thereasons and sanction taken under Section 151, the said applicationwas dismissed placing reliance upon the decision of the year 2014ie., prior to coming into force the amended provision and haspassed the assessment order on the same date. comply with the provisions in its words and spirit as the amendedprovisions of the Act of 1961 provides safeguards to the assessee.Even the application submitted by the petitioner to provide certifiedcopy of the reasons recorded under Section 148(2) of the Act,documents, statement and investigation report referred in thereasons and sanction taken under Section 151, the said applicationwas dismissed placing reliance upon the decision of the year 2014ie., prior to coming into force the amended provision and haspassed the assessment order on the same date. 9. In the aforementioned facts of the case, the question arise forconsideration of this Court is whether the writ petition is liable to bedismissed in view of the alternate remedy of appeal available topetitioner under Section 246A of the Act of 1961, as argued bylearned counsel for respondents. Hon’ble Supreme Court innumber of decisions have considered the bar of entertaining thepetition under Article 226 of Constitution of India on the ground ofavailability of efficacious alternate statutory remedy. In the case of Harbanslal Sahnia vs. India Oil Corpn. Ltd. [(2003) 2 SCC 107],Hon’ble Supreme Court has considered the circumstances underwhich the High Court can exercise its writ jurisdiction under Article226 of the Constitution of India in spite of availability of alternateremedy and held thus: “7. So far as the view taken by the High Courtthattheremedybywayofrecoursetoarbitrationclausewasavailabletotheappellants and therefore the writpetition filedby the appellants was liable to bedismissed,suffice it to observe that the rule ofexclusionofwritjurisdictionbyavailabilityofanalternative remedy is a rule of discretion andnotoneofcompulsion.Inanappropriatecase in spite ofavailability of the alternativeremedy, the High Courtmay still exercise itswritjurisdictioninatleastthreecontingencies:(i)wherethewritpetitionseeksenforcementofanyoftheFundamental Rights; (ii)where there is failureof principles of natural justice or, (iii) wherethe orders or proceedings are whollywithoutjurisdictionortheviresofanActandischallenged[SeeWhirlpoolCorporationv.Registrarof Trade Marks, Mumbai and Ors.(1998) 8 SCC 11].The present case attractsapplicabilityoffirsttwocontingencies.Moreover,asnoted,thepetitioners'dealership, which is their bread and buttercame to beterminated for an irrelevant andnon-existent cause.In such circumstances,we feel that the appellantsshould have beenallowed relief by the High Courtitself instead ofdrivingthemtotheneedofinitiatingarbitration proceedings.” 10. Recently, Hon’ble Supreme Court in the case of AssistantCommissioner of Sales Tax & others vs. Commercial SteelLimited [(2021) SCC OnLine SC 884, has observed thus: “11. The respondent had a statutory remedyunder section 107. Instead of availing of theremedy, the respondent instituted a petition underArticle 226. The existence of an alternate remedyis not an absolute bar to the maintainability of awrit petition under Article 226 of theConstitution. But a writ petition can beentertained in exceptional circumstances wherethere is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statues ordelegated legislation.” 11. In the aforementioned decision Hon’ble Supreme Court has clearlyobserved that existence of alternate remedy is not an absolute barto the maintainability of writ petition under Article 226 of theConstitution of India. observed that existence of alternate remedy is not an absolute barto the maintainability of writ petition under Article 226 of theConstitution of India. (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statues ordelegated legislation.” 11. In the aforementioned decision Hon’ble Supreme Court has clearlyobserved that existence of alternate remedy is not an absolute barto the maintainability of writ petition under Article 226 of theConstitution of India. observed that existence of alternate remedy is not an absolute barto the maintainability of writ petition under Article 226 of theConstitution of India. 12. In the case at hand, the Parliament amended the provisions underSection 147 to 149 and 151 of the Act of 1961 and the substitutedprovisions under Section 147 to 149 and 151 came into force w.e.f.01.04.2021. The notice under Section 148 of the Act of 1961 wasissued on 09.06.2021. On the date of issuance of notice underSection 148 the respondents are under obligation to comply withSection 147 to 149 and 151 of the Act of 1961 and the substitutedprovisions under Section 147 to 149 and 151 came into force w.e.f.01.04.2021. The notice under Section 148 of the Act of 1961 wasissued on 09.06.2021. On the date of issuance of notice underSection 148 the respondents are under obligation to comply with the provisions under Section 148A which provide for conducting anenquiry if required by prior approval of the specified authority,providing an opportunity of being heard to assessee by serving hima show-cause notice, to consider the reply, if any, of the assesseeto the show-cause notice and thereafter to take decision on thebasis of material available on record including the reply whether ornot it is a fit case to issue notice under Section 148 and to passorder in this regard. Only after passing an order under Section148A(d) of the Act of 1961, the notice under Section 148 is to beissued. By amending the Act of 1961 under Section 147 to 149 and151 certain safeguards are provided to the assessee. 13. In the case at hand, procedure as provided under Section 148A ofthe Act of 1961 is not followed by the respondents before issuingnotice under Section 148 of the Act, the notice issued under Section148 of the Act of 1961 is in violation of principle of natural justiceand therefore the entire proceedings initiated of passing of an orderof assessment is in violation of principle of natural justice and entireproceeding is vitiated in the eyes of law. Even the applicationseeking material and documents referred in the reasons were notsupplied and the said application was dismissed relying upon thedecision which was not applicable to the facts of the case at handon the date of consideration of application, in view of the dictum ofthe Supreme Court in the case of Ashish Agarwal (supra) whereinthe Hon’ble Supreme Court has ordered to provide the respectiveassessee the information and material relied upon by the Revenueso that the assessee can reply to the show-cause notice within thespecific time frame. 14. In the aforementioned facts of the case and the decisions ofHon’ble Supreme Court in the case of Harbanslal Sahnia (supra)and Commercial Steel Limited (supra) , the submission of learnedHon’ble Supreme Court in the case of Harbanslal Sahnia (supra)and Commercial Steel Limited (supra) , the submission of learned counsel for respondent that the writ petition is not maintainable inview of the existence of alternate remedy under Section 246A of theAct of 1961 is not sustainable. This Court is of the considered viewthat in the facts of the case petition under Article 226 of theConstitution of India is maintainable. The decisions relied upon bythe learned counsel for respondents are on different facts. 14. In the aforementioned facts of the case and the decisions ofHon’ble Supreme Court in the case of Harbanslal Sahnia (supra)and Commercial Steel Limited (supra) , the submission of learnedHon’ble Supreme Court in the case of Harbanslal Sahnia (supra)and Commercial Steel Limited (supra) , the submission of learned counsel for respondent that the writ petition is not maintainable inview of the existence of alternate remedy under Section 246A of theAct of 1961 is not sustainable. This Court is of the considered viewthat in the facts of the case petition under Article 226 of theConstitution of India is maintainable. The decisions relied upon bythe learned counsel for respondents are on different facts. 15. For the foregoing discussion, writ petition is allowed and the orderof assessment Anneuxre P-8 dated 30.03.2022 is set aside. Matteris remitted back to the respondents-authorities for deciding the caseafresh treating the notice issued under Section 148 of the Act of1961 to be a notice under Section 148A and to proceed complyingthe provisions under Section 148A of the Act of 1961 keeping inmind the decision of Hon’ble Supreme Court in the case of AshishAgarwal (supra) and to pass the orders afresh. of assessment Anneuxre P-8 dated 30.03.2022 is set aside. Matteris remitted back to the respondents-authorities for deciding the caseafresh treating the notice issued under Section 148 of the Act of1961 to be a notice under Section 148A and to proceed complyingthe provisions under Section 148A of the Act of 1961 keeping inmind the decision of Hon’ble Supreme Court in the case of AshishAgarwal (supra) and to pass the orders afresh. Sd/- (Parth Prateem Sahu) Judge