SURINDER KAUR THROUGH LEGAL HEIR SH. AJAY PARTAP,DHALPUR vs. INCOME TAX OFFICER, WARD, KULLU, KULLU

From the case records, it emerges that the assessee did not file return of income. To verify sale of certain immoveable property, the case was reopened and notice u/s 148 was issued by Jurisdictional Assessing Officer (JAO) (ITO, Ward Kullu) on 31-03-2022 which is placed in the paper-book. The Ld. AO assessed income of Rs.203.40 Lacs which was confirmed by Ld. CIT(A) in the impugned order. The first appeal was filed by legal representative (LR) of the assessee since the assessee left for heavenly abode on 18-06-2017. No representation was made by LRs before any of lower authorities. Aggrieved, the assessee is in further appeal before us. The Ld. AR raised various legal arguments including service of notice on dead person. The Ld. Sr. DR contended that no such information was provided on the web portal which would enable Ld. AO to serve notice on LRs. The Ld. AR also raised legal issue that notice has been issued by Jurisdictional Assessing Officer (JAO) instead of Faceless Assessing Officer (FAO) which would vitiate the assessment proceedings as per various decisions of jurisdictional High Court.

The undisputed fact that emerges is that notice u/s 148 has been issued on 31-03-2022 by Jurisdictional Assessing Officer (JAO) instead of Faceless Assessing Officer (FAO). This notice, in terms of notification of the Central Government dated 29-03-2022 u/s 151A sub- section (1) and (2) of the Income Tax Act, was required to be issued by FAO. The failure to do so would vitiate the assessment proceedings as per the lead decision of Hon’ble High Court of Punjab & Haryana in the case of Jatinder Singh Bhangu (165 Taxmann.com 115), the substantive portion of which read as under: - 15. From the perusal of Section 151A, it is quite evident that scheme of faceless assessment is applicable from the stage of show cause notice under Section 148 as well as 148A. Clause 3 (b) of notification dated 29.03.2022 issued under Section 151A clearly provides that scheme would be applicable to notice under Section 148. Even otherwise, it is a settled proposition of law that assessment proceedings commence from the stage of issuance of show cause notice. The object of introduction of faceless assessment would be defeated if show cause notice under Section 148 is issued by Jurisdictional Assessing Officer. The respondents are heavily placing reliance upon office memorandum and letter issued by departmental authorities. It is axiomatic in tax jurisprudence that circulars, instructions and letters issued by Board or any other authority cannot override statutory provisions. The circulars are binding upon authorities and Courts are not bound by circulars. The mandate of Section 144B, 151A read with notification dated 29.03.2022 issued thereunder is quite lucid. There is no ambiguity in the language of statutory provisions, thus, office memorandum or any other instruction issued by Board or any other authority cannot be relied upon. Instructions/circulars can supplement but cannot supplant statutory provisions.