Dennischarles John Das vs. Income tax Officer Ward 4(1) Thane

918-WP 13307-24.DOC Prajakta Vartak IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 13307 OF 2024 Dennischarles John Das ...Petitioner Vs Income tax Officer Ward 4(1) Thane & Ors. ...Respondents _________ Ms. Rutuja Pawar with Ms. Hetal Laghave for Petitioner. Mr. Akhileshwar Sharma for Respondents. __________ CORAM: G. S. KULKARNI & SOMASEKHAR SUNDARESAN, JJ. DATE: 30 SEPTEMBER, 2024. P.C. 1. We have heard Ms. Pawar, learned counsel for the petitioner and Mr. Sharma, learned counsel for the respondents. 2. Reply affidavit on behalf of respondents is tendered. 3. This petition under Article 226 of the Constitution of India is filed praying for the following reliefs:- “a. That this Hon'ble Court may be pleased to issue, a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate Writ, Order or direction, calling for the records of the Petitioner's case and after going into the legality and propriety thereof, to quash and set aside the said Notice under section 148A(b) of the Act dated 10 .02.2023 (Exh. B), Order u/s. 148A( d) of the Act (Exh. D)and Notice u/s. 148 dated 16.03.2023 (Exh. E), assessment order passed u/s. 147 r.w.s. 144 of the Act dated 15.03.2024, and consequential demand and penalty notices for A.Y. 2016-17 (Exh. F). b. That this Hon'ble Court be pleased to issue a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction under Article 226 of the Constitution of India prohibiting Respondents from taking any steps in furtherance of the said Notice u/s. 148 of the Act dated 16.03.2023 and assessment order dated 15 .03 .2024. Page 1 of 5 30 September 2024 PRAJAKTA SAGAR VARTAK Digitally signed by PRAJAKTA SAGAR VARTAK Date: 2024.10.15 12:43:17 +0530 918-WP 13307-24.DOC c. That pending the hearing and final disposal of the present petition, this . Hon'ble Court may be pleased to stay the operation of the said Order u/s. 148A(d) and Notice u/s. 148 both dated 16.03.2023 assessment order along with consequential demand and penalty notices dated 15.03.2024 for A.Y. 2016-17. d. For ad-interim reliefs in terms of prayers above.” 4. At the outset, Ms. Pawar would submit that notice dated 10 February 2023 under Section 148A(b) of the Income Tax Act, 1961 (“the Act”), Order u/s. 148A(d) of the Act and Notice u/s. 148 dated 16 March 2023, assessment order passed u/s. 147 read with Section 144 of the Act dated 15 March 2024, and consequential demand and penalty notices for A.Y. 2016- 17 would stand covered by the decision of this Court in Hexaware Technologies Limited Vs. Assistant Commissioner of Income Tax & Ors. as also the decision of the Division Bench in Siemens Financial Services Pvt. Ltd. Vs. Deputy Commissioner of Income Tax, Circle 8 (2)(1), Mumbai & Ors., (“Siemens”) in regard to the applicability of Section 151 of the Act as the sanction has not been granted by the appropriate authority as specified under the said provision. 5. However, Ms. Pawar has fairly submitted that the petitioner has come before the Court after the petitioner had already filed an appeal against the impugned assessment order, as also the petitioner has filed a Review Application before the Principal Chief Commissioner under Section 264 of the Act. Ms. Pawar has stated that both the proceedings are pending, namely, the appeal before the CIT(A), as also the Review proceedings before the Principal Chief Commissioner of Income Tax. He, however, submits that considering the decision of this Court being of the jurisdictional High Court in Hexaware (supra) and Siemens (supra), the present petition has been filed despite the petitioner’s appeal and revision remaining pending. Page 2 of 5 30 September 2024 918-WP 13307-24.DOC 6. Mr. Sharma, learned counsel for revenue would submit that much prior to the decisions of this Court in Hexaware as also in Siemens (supra), the petitioner in the present case has availed of an alternate remedy. It is hence submitted that in the facts of the case it would be appropriate that the statutory remedy which is already availed by the petitioner, be pursued by the petitioner and not invoke the extraordinary jurisdiction of this Court under Article 226 by filing this petition, merely because as the aforesaid decisions are rendered by this Court. In other words, Mr. Sharma’s submission is that the decision of this Court in Hexaware and Siemens (Supra) are bound to be taken into consideration by the Appellate Authority as also by the Revisional Authority in the adjudication of the pending proceedings. 7. We find much substance in the contention as urged by Mr. Sharma on behalf of the revenue. Once the petitioner has availed of an alternate remedy as provided under the Act, namely, of a substantive appeal being filed, and if the assessment order as also the notices issued to the petitioner prior thereto under Section 148A and under Section 148 are contrary to the substantive provisions of Section 151A and Section 151 of the Act, as interpreted by this Court in Hexaware and Siemens (supra), the Appellate Authority as also the Revisionary Authority being bound by the said decisions of the jurisdictional High Court, need to consider such legal position. Thus, the petitioner is not precluded from raising all such contentions, as raised before us in the present proceedings, before the said authority. 8. Accordingly, we are of the opinion that the proceedings which are pending before the CIT(A) as also the Revisionary proceedings, be decided considering the contentions of the petitioner, namely, as to whether the impugned assessment order as also the notice under Section 148 of the Act Page 3 of 5 30 September 2024 918-WP 13307-24.DOC is illegal when tested on the law as declared by this Court in the aforesaid decisions. 9. We are of the opinion that an approach ought not to be followed that when the appellate authority is already seized with the proceedings, we entertain writ petitions to adjudicate, what can certainly be adjudicated by the appellate authority, considering the said decisions of this Court. As rightly pointed by Mr. Sharma an approach otherwise, would create a situation that all matters which are pending before the Appellate Authority and which are supposed to be decided in accordance with law involving issues on applicability of the decisions of this Court, in disposing of the proceedings would be required to be entertained by this Court. Certainly, such approach cannot be adopted by the Court. We are hence of the opinion that it would be appropriate that the petitioner-assessee pursues such pending proceedings as already filed before the appropriate Appellate Authority and Revisionary Authority. 10. Accordingly, we are not persuaded to entertain the present proceedings which assail the assessment order dated 15 March 2024 when appeal is already filed by the petitioner as also the revision proceedings are pending. 11. However, we find substance in Ms. Pawar’s contention that if prima facie the petitioner is correct that the impugned assessment order as also the notice issued under Section 148 if it is illegal and contrary to the law laid down by this Court in Hexaware and Siemens (supra), the same ought not to be given effect, till the appellate proceedings and revisionary proceedings are decided. In the aforesaid circumstances, we dispose of this petition by the following order: Page 4 of 5 30 September 2024 918-WP 13307-24.DOC