DEEPAK RAJARAM KUKREJA vs. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRLE - 1 KALYAN

920-WP 12186-24.DOC Prajakta Vartak IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 12186 OF 2024 Mr. Deepak Rajaram Kukreja ...Petitioner Vs The Assistant Commissioner of Income Tax Circle-1, Kalyan & Ors. ...Respondents __________ Mr. Laukik Palekar i/b. Mr. Akshay Zantye for Petitioner. Mr. Akhileshwar Sharma for Respondents. __________ CORAM: G. S. KULKARNI & SOMASEKHAR SUNDARESAN, JJ. DATED: 02 September 2024. P.C. 1. Reply filed on behalf of the revenue is taken on record. 2. This petition under Article 226 of the Constitution of India is filed praying for the following reliefs: “a. To issue a writ in the nature of Certiorari or any other writ, order, or direction to quash and set aside the impugned proceedings i.e. U/s. 148A(b) dated 21/03/2023, Order under S.148A(d) and notice under S.148 dated 30/03/2023, Assessment Order dated 26/03/2024, Demand Notice under S. 156 dated 26/03/2024 under Income Tax Act, 1961. b. Pending the hearing and final disposal of this Petition, the effect, implementation, operation and any coercive action taken by the Respondents under the impugned proceedings be stayed. c. Pending the hearing and final disposal of this Petition, the Respondents be restrained from acting in pursuance or initiating any proceedings or taking any coercive action in pursuance of the impugned proceedings. d. To grant ad-interim relief in terms of prayer (b) and (c) as stated hereinabove. Page 1 of 7 ______________ 2 September 2024 PRAJAKTA SAGAR VARTAK Digitally signed by PRAJAKTA SAGAR VARTAK Date: 2024.09.09 16:59:21 +0530 920-WP 12186-24.DOC e. Costs of the Petition be awarded to the Petitioner. f. Any other ad-interim or interim relief in favour of the Petitioner. g. Any other relief in favour of the Petitioner.” 3. The challenge as raised in this petition is to the notice under Section 148 on the ground that the impugned notice would be required to be held to be illegal in view of the law as laid down in the decision in Hexaware Technologies Limited Vs. Assistant Commissioner of Income Tax & 4 Ors.1 (Hexaware). We are fairly informed at the bar that a final assessment order has already been passed on 26 March, 2024, and such order has been appealed against by the petitioner, and such appeal is pending. 4. Our attention is drawn to a decision of this Court in Rajan Pradeepkumar Dubey vs. Income Tax Officer Ward 3-2, Kalyan & Ors. in Writ Petition No. 11166 of 2024 decided on 12 August, 2024 wherein in similar circumstances, when an appeal filed by the assessee was pending, we had not entertained the writ petition and had permitted the petitioner to pursue the appeal. The following observations of the Court in such order are required to be noted:- “4. At the outset, Mr. Walve would submit that the impugned assessment order dated 22 May 2023 as also the impugned notice under Section 148 dated 18 July 2022 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 1 (2024) 464 ITR 430 Page 2 of 7 ______________ 2 September 2024 920-WP 12186-24.DOC the provisions of the Act as the sanction has not been granted by the appropriate authority as specified under the said provisions. 5. However, Mr. Walve 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 Income Tax Act. Mr. Walve 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. 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 Income Tax 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. Page 3 of 7 ______________ 2 September 2024 920-WP 12186-24.DOC 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 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 assessees’s pursues such pending proceedings as already filed before the appropriate Appellate Authority or Revisionary Authority. 10. Accordingly, we are not persuaded to entertain the present proceedings which assail the assessment order when appeal is already filed by the petitioner as also the revision proceedings are pending. 11. However, we find substance in Mr. Walve’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