TUNVIEY RADHESHYAM MOPALWAR vs. INCOME TAX OFFICER WARD 1 AND OTHERS

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WP/5067/2023HC BombayHCBM03018543202327 August 2024Author: HON'BLE SHRI JUSTICE RAVINDRA V. GHUGE,HON'BLE SHRI JUSTICE Y. G. KHOBRAGADE2 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the issue regarding the sustainability of a notice issued by the JAO instead of the FAO under Section 151(A) of the Income Tax Act, 1961, is settled by the judgment in Hexaware Technologies Limited (supra). The Court found that if the notice was not issued by the FAO, it is unsustainable. Consequently, the notice issued under Section 148 of the Income Tax Act, 1961, was quashed and set aside. Any further demand notice or penalty notice issued in furtherance of the impugned notice was also set aside. The Court clarified that all contentions of both sides, except those covered by the Hexaware Technologies judgment and those available in proceedings initiated by the FAO under Section 151(A), were left open for future consideration.

What were the facts?

The petitioner, Tunviy Radheshyam Mopalwar, filed a writ petition before the Bombay High Court at Aurangabad challenging a notice. The primary contention raised was that the impugned notice, purportedly issued under Section 148 of the Income Tax Act, 1961, was not issued by the appropriate authority. The petitioner argued that such a notice could only be issued by the Faceless Assessing Officer (FAO) in terms of Section 151(A) of the Act, and not by the Jurisdictional Assessing Officer (JAO). The respondents, Income Tax Officer Ward 1 and others, were represented by their counsel. The High Court considered the submissions of both parties.

What were the issues?

1. Whether the notice issued under Section 148 of the Income Tax Act, 1961, by the Jurisdictional Assessing Officer (JAO) is sustainable, or if it ought to have been issued by the Faceless Assessing Officer (FAO) in accordance with the scheme framed under Section 151(A) of the Income Tax Act, 1961? Assessee's Contention: The notice could not have been issued by the JAO and should have been issued by the FAO as per Section 151(A) of the Income Tax Act, 1961. Reliance was placed on the judgment in WP No.1778/2023 (Hexaware Technologies Limited Vs. the Assistant Commissioner of Income Tax and Others). Revenue's Contention: The judgment records no specific argument for the revenue on this point, other than their representation through counsel.

Which sections of the Income-tax Act were involved?

Section 151(A),Section 148

AI-generated summary — verify with the full judgment below

( 1 )

p901 wp 5067.23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5067 OF 2023 TUNVIEY RADHESHYAM MOPALWAR VERSUS INCOME TAX OFFICER WARD 1 AND OTHERS ….. Advocate for the Petitioner : Mr. Pawar Ajay D. Advocate for Respondents : Mr. Alok Sharma ….. CORAM : RAVINDRA V. GHUGE & Y.G. KHOBRAGADE, JJ. DATE : 27th August, 2024 P.C. :-

1.

We have heard the learned Advocates for the respective sides. Several issues have been raised in this Petition, inter alia, one being that the impugned notice could not have been issued by the Jurisdictional Assessing Officer (JAO) and which could have been issued in terms of the provisions of Section 151(A) of the Income Tax Act, 1961 by the Faceless Assessing Officer (FAO).

2.

The learned Advocates for the respective sides submit that the judgment dated 03.05.2024, delivered at the Principal Seat in WP No.1778/2023 (Hexaware Technologies Limited Vs. the Assistant Commissioner of Income Tax and Others), settles this issue. The notice could not have been 2024:BHC-AUG:20049-DB

( 2 )

p901 wp 5067.23 issued, save and except, by the Faceless Assessing Officer. If it is not issued by the FAO, this Court has ruled in Hexaware Technologies (supra), that such notice is unsustainable and, accordingly, the notice was quashed and set aside.

3.

It is, thus, obvious that the ground of notice being not in accordance with the scheme framed u/s 151(A) of the Income Tax Act, 1961, the view taken in Hexaware Technologies (supra), would be applicable to this case.

4.

In view of the above and considering the conclusions drawn in Hexaware Technologies (supra), the notice issued u/s 148 would be unsustainable. The same is, therefore, quashed and set aside. Any further demand notice or penalty notice in furtherance thereof, would also not survive and stands set aside, if any.

5.

With the above directions, the Writ Petition is disposed off. Needless to state, all the contentions of both the sides, save and except, those which are covered by the Hexaware Technologies (supra), and which are available to the parties in a proceeding, which can be initiated by the FAO under the scheme framed u/s 151(A) of the Income Tax Act, are left open. [Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.] mub

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