PROVISO BUILDERS AND DEVELOPERS vs. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 4 (3) AND ANR

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WP/5102/2022HC BombayHCBM01014682202211 August 2025Bench: HON'BLE SHRI JUSTICE B.P. COLABAWALLA,HON'BLE SHRI JUSTICE FIRDOSH PHIROZE POONIWALLA4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that it is bound to follow the decision of the Division Bench of the Bombay High Court in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax, Circle 15(1)(2) [(2024) 162 taxmann.com 225 (Bombay)], as the present issue is squarely covered by it. Consequently, the impugned Notice issued under Section 148 of the Income Tax Act, 1961, and all consequential proceedings and orders emanating therefrom were set aside. The Court granted liberty to the Revenue to revive the Writ Petition if the Supreme Court were to set aside the Hexaware Technologies Ltd. decision. The revival could be done by filing a Praecipe, without needing a separate interim application. The Court clarified that if the Supreme Court dismisses the SLP challenging the Hexaware Technologies Ltd. decision, there would be no question of revival. It was also noted that if the Petition is revived, it would be decided on its own merits, considering other issues raised by the Petitioner.

What were the facts?

The Petitioner, Proviso Builders and Developers, filed a Writ Petition challenging a Notice issued under Section 148 of the Income Tax Act, 1961. The primary ground for challenge was that the Notice was issued by the Jurisdictional Assessing Officer, whereas the law mandates it should be issued by a Faceless Assessing Officer. The Petitioner contended this was a fatal defect invalidating the notice. The Revenue acknowledged that this issue was decided by a Division Bench of the Bombay High Court in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax, but stated that this decision was challenged before the Supreme Court, though no stay was granted. The High Court considered these submissions.

What were the issues?

1. Whether the Notice issued under Section 148 of the Income Tax Act, 1961, is invalid because it was issued by the Jurisdictional Assessing Officer instead of the Faceless Assessing Officer, as mandated by law? (Question of law and fact, concerning Section 148 of the Income Tax Act, 1961). Assessee's Contention: The Petitioner argued that the Notice is invalid due to being issued by the wrong authority, citing the Bombay High Court's decision in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax, Circle 15(1)(2) [(2024) 162 taxmann.com 225 (Bombay)] as squarely covering this issue. Revenue's Contention: The Revenue conceded that the issue is covered by the Hexaware Technologies Ltd. judgment but highlighted that this judgment has been challenged before the Supreme Court. They stated that the Supreme Court is likely to hear the matter soon and that there is no stay on the Hexaware Technologies Ltd. decision.

Which sections of the Income-tax Act were involved?

Section 148

AI-generated summary — verify with the full judgment below

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5102 OF 2022 Proviso Builders and Developers .. Petitioner Versus Asst.Commissioner of Income Tax, Central Circle 4(3) and Anr. .. Respondents Ms.Ritika Agarwal a/w Ms.Yaminee Verma i/b M/s.ACE Legal, Advocate for the Petitioner. Mr.Suresh Kumar, Advocate for the Respondents.

CORAM: B. P. COLABAWALLA & FIRDOSH P. POONIWALLA, JJ. DATE: AUGUST 11, 2025 P. C. 1. Rule. Respondents waive service. With the consent of the parties, Rule made returnable forthwith and heard finally. 2. The above Writ Petition interalia challenges the Notice issued under Section 148 of the Income Tax Act, 1961 on various grounds. One of the grounds is that the Notice has been issued by the Jurisdictional Assessing Page 1 of 4 AUGUST 11, 2025 Mohite TRUSHA TUSHAR MOHITE Digitally signed by TRUSHA TUSHAR MOHITE Date: 2025.08.12 11:30:19 +0530

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Officer when the law mandates that it has to be issued by the Faceless Assessing Officer. This is a fatal defect and therefore the Notice has to be quashed, is the argument of the Petitioner. 3. It is the Petitioners’ contention that this issue is squarely covered by a decision of a Division Bench of this Court in the case of Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax, Circle 15(1)(2) [(2024) 162 taxmann.com 225 (Bombay)]. 4. On the other hand, the learned advocate appearing on behalf of the Revenue stated that though it is true that this issue is concluded by the decision in Hexaware Technologies Ltd (supra), the said decision has been challenged before the Hon’ble Supreme Court, and the Hon’ble Supreme Court is likely to take up the matter shortly. He has fairly stated that there is no stay to the judgment in Hexaware Technologies Ltd (supra).

5.

Considering these facts, we do not propose to keep the matter pending in this Court. Once it is fully covered by the decision in Hexaware Technologies Ltd (supra) we are bound to follow it. Page 2 of 4 AUGUST 11, 2025 Mohite

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6.

We accordingly set aside the impugned Notice issued under Section 148 and all other proceedings/orders emanating therefrom. 7. We however grant liberty to the Revenue to revive the above Writ Petition in the event the decision in Hexaware Technologies Ltd (supra) is set aside by the Hon’ble Supreme Court on this issue. We make it clear that it will not be necessary for the Revenue to file a separate Interim Application to seek a revival of this Petition and the same can be done simply by moving a Praecipe before this Court. It is needless to clarify that if the Hon’ble Supreme Court dismisses the SLP challenging the decision in Hexaware Technologies Ltd (supra), there would be no question of any revival. 8. We also make it clear that once the Petition is revived and restored, the same would have to be decided on its own merits considering that several other issues are also raised challenging the Notice issued under Section 148. 9. Rule is accordingly made absolute and the Writ Petition is also disposed of in terms thereof. However, there shall be no order as to costs. Page 3 of 4 AUGUST 11, 2025 Mohite

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10.

This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order. [FIRDOSH P. POONIWALLA, J.] [B. P. COLABAWALLA, J.] Page 4 of 4 AUGUST 11, 2025 Mohite

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