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

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WP/8675/2025HC BombayHCBM07022334202507 July 2025Author: HON'BLE SHRI JUSTICE B.P. COLABAWALLA,HON'BLE SHRI JUSTICE FIRDOSH PHIROZE POONIWALLA4 pages
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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 of the same Court in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax, Circle 15(1)(2) [(2024) 162 taxmann.com 225 (Bombay)], the Court was bound to follow it. Consequently, the impugned Notice issued under Section 148 of the Income Tax Act, 1961, and all 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. judgment on this issue. The Court clarified that revival could be sought by filing a Praecipe, without needing a separate interim application. It was also made clear that upon revival, the Petition would be decided on its own merits, considering other issues raised.

What were the facts?

The petitioner, Bharati Hitesh Kankaria, filed a Writ Petition before the Bombay High Court 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 mandated its issuance by a Faceless Assessing Officer. The petitioner argued this was a fatal defect. The Revenue acknowledged that this issue was covered by a Division Bench decision of the Bombay High Court in Hexaware Technologies Ltd. V/S Assistant Commissioner of Income-tax, Circle 15(1)(2), but stated that this decision had been challenged before the Supreme Court. The Revenue also confirmed there was no stay on the Hexaware Technologies Ltd. judgment.

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). Assessee's Contentions: The petitioner argued that the issuance of the Section 148 Notice by the Jurisdictional Assessing Officer, when the law requires it to be issued by a Faceless Assessing Officer, constitutes a fatal defect rendering the Notice liable to be quashed. The petitioner relied on the decision 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)]. Revenue's Contentions: The Revenue conceded that the issue was concluded by the Hexaware Technologies Ltd. judgment. However, they informed the Court that this judgment had been challenged before the Supreme Court and was likely to be taken up soon. The Revenue also fairly stated that there was no stay granted against 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. 8675 OF 2025 Bharati Hitesh Kankaria .. Petitioner Versus Income Tax Officer, Ward 2(3), Solapur & Ors. .. Respondents Ms.Rutuja Pawar (through V.C.) a/w Hetal Laghave, Advocates for the Petitioner. Mr. Akhileshwar Sharma, Advocate for the Respondents.

CORAM : B. P. COLABAWALLA & FIRDOSH P. POONIWALLA, JJ. DATE : JULY 07, 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 Officer when the law mandates that it has to be JULY 07, 2025 Utkarsh UTKARSH KAKASAHEB BHALERAO UTKARSH KAKASAHEB BHALERAO Date: 2025.07.10 11:48:17 +0530

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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 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. JULY 07, 2025 Utkarsh

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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.

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. JULY 07, 2025 Utkarsh

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10.

This order will be 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.] JULY 07, 2025 Utkarsh

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