SUNIL GYNACHAND CHOITHANI vs. INCOME TAX OFFICER WARD 1 1 KOLHAPUR AND ORS

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WP/14773/2024HC BombayHCBM07052758202429 July 2025Bench: HON'BLE SHRI JUSTICE B.P. COLABAWALLA,HON'BLE SHRI JUSTICE FIRDOSH PHIROZE POONIWALLA3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that since the issue raised by the Petitioner was squarely covered by the Division Bench decision in Hexaware Technologies Ltd. (supra), the Court was bound to follow 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 in the event the decision in Hexaware Technologies Ltd. (supra) is set aside by the Hon'ble Supreme Court. The Court clarified that revival could be sought by filing a Praecipe, and if the Supreme Court dismisses the SLP challenging the Hexaware decision, there would be no question of revival. Upon revival, the Petition would be decided on its merits, considering other issues raised.

What were the facts?

The petitioner, Sunil G. Choithani, filed a Writ Petition challenging a Notice issued under Section 148 of the Income Tax Act, 1961. The petitioner contended that the notice was issued by the Jurisdictional Assessing Officer, whereas the law mandates it should be issued by a Faceless Assessing Officer. This was argued to be a fatal defect. The High Court of Judicature at Bombay issued a Rule and granted interim relief staying the Section 148 Notice. The matter was heard finally with the consent of both parties. The Revenue acknowledged that the issue was covered by a Division Bench decision of the same court but stated it was challenged before the Supreme Court, though no stay was in place.

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 contended by the Petitioner? (Question of law, concerning Section 148 of the IT Act, 1961). Assessee's Contention: The Petitioner argued that the issuance of the Section 148 Notice by the Jurisdictional Assessing Officer, when the law mandates it to be issued by a Faceless Assessing Officer, constitutes a fatal defect, rendering the notice liable to be quashed. They relied on the Division Bench decision of this Court in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax, Circle 15(1)(2) [(2024) 162 taxmann.com 225 (Bombay)]. Revenue's Contention: The Revenue conceded that the issue was concluded by the Hexaware Technologies Ltd. decision. However, they informed the Court that this decision had been challenged before the Hon'ble Supreme Court and was likely to be taken up immediately upon re-opening. The Revenue fairly stated that there was no stay to the Hexaware Technologies Ltd. judgment.

Which sections of the Income-tax Act were involved?

Section 148

AI-generated summary — verify with the full judgment below

53-14773-2024-CWP=.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 14773 OF 2024 Sunil G. Choithani .. Petitioner Versus Income Tax Officer, Ward 1(1), Kolhapur & Ors. .. Respondents Ms. Rutuja N. Pawar a/w Mr. Hetal Laghave, Ms. Sneha More, Advocates for the Petitioner. Mr. Arjun Gupta, Advocate for the Respondents.

CORAM : B. P. COLABAWALLA & FIRDOSH P. POONIWALLA, JJ. DATE : JULY 29, 2025 P. C. 1. In the above Petition Rule was issued on 22nd October 2024 and interim relief was also granted interalia staying the Notice issued under Section 148 of the Income Tax Act, 1961. Today, though the matter has come up under the caption “for directions”, we have, with the consent of parties, heard it 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 Officer when the law mandates that it has to be issued by the Page 1 of 3 JULY 29, 2025 Uday S. Jagtap UDAY SHIVAJI JAGTAP Digitally signed by UDAY SHIVAJI JAGTAP Date: 2025.08.02 12:27:28 +0530

53-14773-2024-CWP=.doc 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 immediately on re-opening. The learned Counsel for the Revenue 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. 6. We accordingly set aside the impugned Notice issued under Section 148 and all other proceedings/orders emanating therefrom. Page 2 of 3 JULY 29, 2025 Uday S. Jagtap

53-14773-2024-CWP=.doc 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. 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 3 of 3 JULY 29, 2025 Uday S. Jagtap

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