ASSISTANT COMMISSIONER OF INCOME TAX, NUNGAMBAKKAM vs. PAWAN CARGO FORWARDS PVT LTD, CHENNAI

6. The Learned Commissioner of Income-tax (Appeal) erred in holding that the reassessment order is based on borrowed satisfaction and failed to note the Assessing officer's finding that the share price of the scrip had been rigged from Rs.2 per share to Rs.90 per share (increase of 4400%) within a short span of 90 days and the same was offloaded to the assessee when the prices were peak for the purpose of providing accommodation entry and its subsequent claim of LTCG.

7. The Learned Commissioner of Income-tax (Appeal) failed to note the decision of the Hon’ble High Court of Bombay in the case of Sanjay Bimalchand Jain (88 taxmann.com 196) wherein the Honble Court had upheld the addition made in respect of LTCG for the purchase of penny shares at lesser amount and sold the same within a year at much higher amount and where the assessee had not tendered cogent evidence to explain as to how the shares in an unknown company had jumped to such higher amount in no time and failed to provide the details of person(s) who purchased said shares. The Learned CIT(A) failed to note the similar decisions rendered by the Hon'ble High Court of Kolkata in the case of Nand Kishore Agarwal (143 taxmann.com 402) and the decision rendered by the Honble High Court of Gujarat in the case of Uttamchand Mehta (139 taxmann.com 409).

8. For these and other grounds that may be urged at the time of hearing, it is prayed that the order of the Commissioner of Income-tax (Appeal) may be set aside and that of the assessing officer restored.”

3. The assessee has filed Cross Objection [CO.No.3/Chny/2025] raising following grounds:

1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned reassessment order passed by Ld. AO w/s 147/144B inter-alia without assuming jurisdiction as per law and without complying with mandatory conditions u/s 147 to 151A as envisaged under the C.O No.3/Chny/2025 Pawan Cargo Forwards Income Tax Act, 1961 and without obtaining valid approval/sanction u/s 151 as per law.

2. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have quashed the impugned reassessment order passed by Ld. AO dated 17-05-2023 as no notice u/s 143(2) was issued/served upon the assessee company after the filing of return of income in response to notice u/s 148.

3. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have quashed the impugned reassessment order passed by Ld. AO dated 17-05-2023 inter-alia on the ground the re- assessment proceedings were earlier invoked vide first notice issued u/s 148 dated 13-04-2021 which were pending and accordingly, the second notice u/s 148, which is the impugned notice u/s 148, could not have been issued and therefore, the impugned re-assessment proceedings so framed and impugned re-assessment order so passed on the basis of second 148 is illegal and bad-in-law.

4. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have quashed the impugned reassessment order passed by Ld. AO - dated 17-05-2023 as the impugned notice u/s 148 has been issued without DIN as per mandatory requirement of CBDT circular No. 19/2019 dated 14.08.2019 have not been complied with as is must as held in the judgements of CIT (International Taxation) vs. Brandix Mauritius Holdings Ltd., dated 20.03.2023 (Del), PCIT(E) vs. M/s Tata Medical Centre Trust, ITAT/202/2023, dated 26.09.2023 (Cal) and Ashok Commercial Enterprises vs. Asstt. CIT, WP No. 2595 of 2021, dated 04.09.2023 (Bom) and CBDT Circular No. 19/2019 dated 14.08.2019.

5. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have quashed the impugned reassessment order passed by Ld. AO dated 17-05-2023 inter-alia on the ground that the impugned order passed u/s 148A(d) has been passed without independent application of mind and without providing the adverse material on record and without following the other mandatory conditions in this regard.

6. That having regard to the facts and circumstances of the case, Ld. CIT(A) ought to have deleted the impugned additions made by Ld. AO inter alia on the ground that the same has been made by Ld. AO without providing the adverse material on record to the assessee company.” assessee vide letter dated 02.07.2025 along with judgment of the jurisdictional High Court in the case of TVS Credit Services Ltd Vs DCIT has pointed out the ground No.3 of the revenue. The aforesaid Ground No.3 of the revenue is as under:

“3. The Learned Commissioner of Income-tax (Appeals) failed to appreciate the fact that the Act does not distinguish between the JAO and FAO with respect to the Jurisdiction over a case. Further, the E- assessment of Income Escaping Assessment Scheme, 2022 dated 29.3.2022 makes it abundantly clear that the JAO is empowered to issue notice u/s.148.”

5. The Ld. Counsel for the assessee referred to Page No.12, para 8 of the impugned order which talks of notice u/s.148 of the Act dated 30.07.2022 and pointed out that the notice u/s.148 has been issued by the Deputy Commissioner of Income Tax, LTU Circle-1, Chennai (JAO). He further referred to CBDT Notification dated 29.03.2022 which formulated a Scheme called “the e-assessment of income assessment scheme, 2022”.

liberty to apply to this Court, in case the Revenue succeeds before the Apex Court, for revival of these petitions, the notices issued in these petitions are quashed and set aside.

Hence, the aforesaid CBDT Notification dated 29.03.2022 is directly applicable in this case.

ITO (2023) 156 taxmann.com 178 (Telangana) and Hon’ble Bombay High Court in Hexaware Technologies Ltd Vs ACIT (2024) 464 ITR 430 (Bom) has decided the controversy in favour of the assessee.

29. In view of foregoing analysis, it is clear that the respondents have erred in not following the mandatory faceless procedure as prescribed in the scheme dated 29.03.2022. Since notices under Section 148 of the C.O No.3/Chny/2025 Pawan Cargo Forwards Act were not issued in a faceless manner, the entire further proceeding founded upon it and assessment orders stand vitiated. Thus, the impugned notices under Section 148 of the Act and all consequential assessment orders based thereupon are set aside. Liberty is reserved to the respondents to proceed against the petitioners in accordance with law.

11. The Hon’ble Telangana High Court in DEEPANJAN ROY Vs ADIT (INT TAXN) 2 HYD & ANR [Writ Petition No.23573 of 2024 dated 29.08.2024], following the judgment in Writ Petition No.13353 of 2024 and batch dated 24.07.2024 held as under:

“In view of the consensus arrived at, this Writ Petition is allowed in terms of order passed in W.P.No.13353 of 2024 and batch. The direction contained in the said order shall apply mutatis mutandis to this case with full force. No costs.”

"Where an appeal or revision is provided before a superior forum against an order passed by a Court, Tribunal or any other authority and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges with the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law"

The Supreme Court in the aforesaid case has concluded as follows:-

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

C.O No.3/Chny/2025 Pawan Cargo Forwards (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

ITR 658 (SC), the Apex Court held that what merges is the operative part i.e. the mandate decree issued by the court which may have been expressed in positive or negative form. The application of the doctrine depends on the nature of the appellate or revisional order, the scope of the statutory provisions conferring jurisdiction and the subject matter of challenge with the following remarks:-

"………..Though loosely an expression "merger of judgement, order or decision of a Court or forum into the judgement, order or decision of a superior forum" is often employed, as a general rule, the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part, i.e., the mandate or decree issued by the Court which may have been expressed in positive or negative form. For example, take a case where the subordinate forum passes an order and the same, having been dealt with by a superior forum, is confirmed for reasons different from the one assigned by the subordinate forum, what would merge in the order of the superior forum is the operative part of the order and not the reasoning of the subordinate forum, otherwise there would be an apparent contradiction. However, in certain cases, the reasons for the decision can also be said to have merged in the order of the superior Court if the superior Court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, or recorded an express approval of the reasoning, incorporated in the judgment or order of the subordinate forum."

“2. Learned Single Judge in order dated 20.12.2024 in WP Nos.25223 of 2024 held that it does not matter if the Jurisdictional Assessing Officer (JAO) issues the notice and it is not mandatory that it should be issued by the Faceless Assessment Officer (FAO). Another learned Single Judge in order dated 21.04.2025 in WP No.22402 of 2024 and batch cases, followed what was held by the Bombay High Court in Hexaware Technologies Ltd vs. Assistant Commissioner of Income Tax'; and opined that it was mandatory for the FAO to issue notice and issuance of notice by JAO would make the notice invalid.

3. Learned Single Judge thereafter directed the matter to be placed before the Chief Justice for constituting a Division Bench to consider the divergent views. It is, therefore, all these matters were listed before us today.

C.O No.3/Chny/2025 Pawan Cargo Forwards 6. Admittedly, learned Additional Solicitor-General, in fairness, states that there is no stay. Therefore, the law as laid down by Hexaware Technologies Ltd (supra) applies.

7. It is clarified that if the Apex Court reverses the judgment of Hexaware Technologies Ltd (supra), parties will be governed by the decision of the Apex Court.

9. In these petitions, apart from the issue of notices issued by JAO instead of FAO, all or many of the issues which were considered in Hexauxare Technologies Ltd (supra) are involved.

10. To the extent the issues raised in Hexaware Technologies Ltd (supra) are not covered, those are kept open to be raised at the appropriate stage.

Order pronounced on 08th day of September, 2025 at Chennai.