BHARATI HITESH KANKARIA vs. INCOME TAX OFFICER WARD 2(3) AND ORS

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WP/7763/2025HC BombayHCBM07022245202528 July 2025Bench: HON'BLE SHRI JUSTICE B.P. COLABAWALLA,HON'BLE SHRI JUSTICE FIRDOSH PHIROZE POONIWALLA3 pages
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What did the High Court hold?

The High Court held that it was 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, as the present case was squarely covered by it. Consequently, the Court set aside the impugned Notice issued under Section 148 of the Income Tax Act, 1961, and all consequential proceedings or orders. However, the Court granted liberty to the Revenue to revive the Writ Petition if the decision in Hexaware Technologies Ltd. is set aside by the Hon'ble Supreme Court. The Court clarified that revival could be done by moving a Praecipe, and if the Supreme Court dismisses the SLP, there would be no question of revival. The Court also noted that if revived, the petition would be decided on its merits, considering other issues raised by the Petitioner.

What were the facts?

The Petitioner, Bharati H. Kankaria, filed a Writ Petition challenging a Notice issued under Section 148 of the Income Tax Act, 1961. The Petitioner argued that the Notice was issued by the Jurisdictional Assessing Officer, whereas the law mandates it to be issued by the Faceless Assessing Officer. This procedural defect, according to the Petitioner, renders the Notice fatal and liable to be quashed. The Petitioner relied on the Bombay High Court's decision in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax. The Revenue acknowledged that the issue was covered by the Hexaware Technologies Ltd. judgment but stated that it had been challenged before the Supreme Court, though no stay was granted.

What were the issues?

1. Whether the Notice issued under Section 148 of the Income Tax Act, 1961, is invalid and liable to be quashed on the ground that 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 fatally defective as it was issued by the wrong authority (Jurisdictional AO instead of Faceless AO) and relied on the Bombay High Court's decision in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax. Revenue's Contention: The Revenue conceded that the issue was covered by the Hexaware Technologies Ltd. judgment but informed the Court that the said judgment was under challenge before the Hon'ble Supreme Court. The Revenue also stated that there was no stay granted 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

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7763 OF 2025 Bharati H. Kankaria .. Petitioner. Versus Income Tax Officer Ward 2 (3) Solapur & Ors. .. Respondents. Adv. Rutuja Pawar (through V. C. ) with Adv. Hetal Laghave and Adv. Sneha More, for the Petitioner. Adv. Akhileshwar Sharma, for the Respondents.

CORAM: B. P. COLABAWALLA & FIRDOSH P. POONIWALLA, JJ. DATE: JULY 28, 2025 P. C. 1. In the above Petition Rule was issued on 17th June 2025 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 Faceless Page 1 of 3 JULY 28, 2025 S.R.JOSHI SMITA RAJNIKANT JOSHI Digitally signed by SMITA RAJNIKANT JOSHI Date: 2025.07.31 10:28:49 +0530

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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. 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. 6. We accordingly set aside the impugned Notice issued under Section 148 and all other proceedings/orders emanating therefrom. Page 2 of 3 JULY 28, 2025 S.R.JOSHI

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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 28, 2025 S.R.JOSHI

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