TMI Blog2022 (6) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner and disposed of the same vide order dated 09.02.2022 supplied to the petitioner vide letter dated 10.02.2022 The impugned notice in the present case is dated 27.03.2021. The notice has also been digitally signed on the same day. Thus, the contention of the petitioner that the notice under Section 148 is beyond limitation does not hold any force and is rejected. The address at which notice was sent by the Revenue is, one of the addresses mentioned by the petitioner on his portal as per Section 282 of the Act read with Rule 127 of the Income Tax Rules. Further, the notice under Section 148 was uploaded on the E-filing portal of the petitioner on 27.03.2021.The petitioner has himself chosen the communication address to be of Faridabad, Haryana which is clearly reflected in the document of PAN jurisdiction details of the petitioner. The petitioner has also raised a plea that notice under Section 148 was never served upon him. The plea of petitioner is that the notice has not been sent at his address, rather the petitioner went to the extent of saying that the notice might have been sent to some other person of his name and may not even belong to him. It is a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DINESH KUMAR SHARMA,J : Preface 1. The present writ petition under Article 226/227 has been filed by Sh. S. K. Srivastava (retired) seeking the following reliefs: (i) To set aside and quash the Notice dated 27.03.2021 alleged to have been issued to Writ Petitioner under Section 148 of Income Tax Act, 1961 (hereinafter referred as Act ) for assessment year (A.Y.) 2016-17 for reassessment of alleged Salary Income of A.Y. 2016-17; (ii) To quash and set aside Notices under Section 142(1) for reassessment of A.Y. 2016-17, Orders dated 09.02.2022 and Notices dated 04.03.2022 under Section 142 (1) and under Section 144 of the Act for (A.Y.) 2016-17 of the National Faceless Assessment Centre (hereinafter referred as NFAC) for A.Y. 2016-17 for ex-parte assessment of writ petitioner. Factual Background:- 2. The petitioner has invoked the writ jurisdiction of this Court to quash and set aside the notice dated 27.03.2021 issued under Section 148 of the Act for A.Y. 2016-17 and further notice issued under Section 142(1) of the Act for A.Y. 2016-17 and the order dated 09.02.2022 disposing of objections of National Faceless Assessment Centre. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e salary income of the petitioner in the relevant assessment year as Rs. 53,21,021/-. The issue of territorial jurisdiction was also not addressed in violation of the CBDT Circular of 2014. The plea of the petitioner is that in fact in the relevant year, he was not paid any pay and allowances by the authorities. Aggrieved by this, the petitioner filed an O.A. No. 2094 of 2014 which was allowed by the Central Administrative Tribunal (CAT) by an order dated 29.04.2015 directing the respondents to pay the payments and allowances of the petitioner including the arrears thereof with interest at the rate of 12%. The department challenged this order before this Court by filing W.P.(C) No. 6768 of 2015. This Court directed release of the amount due to the petitioner. However, the respondents offered only half of the amount due. This Court vide order dated 12.10.2015, directed that in case amount offered was accepted by the petitioner that would be without prejudice to the rights and contentions of both the parties. The petitioner stated that the amount of Rs.53,21,021/-is a disputed amount and remains so during the pendency of the aforesaid W.P.(C) No.6768 of 2015. The petitioner accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction over Haryana. The petitioner stated that the said notice being illegal and invalid should be withdrawn. 13. The petitioner stated that as per the details in PAN Card No. ACXPS3661A his residence address was 6453, Pocket -6, Basant Kunj, Delhi and office address was Assistant Commissioner of Income Tax, CGO Complex, NH IV, Faridabad, Haryana -121001. He stated that the date of allotment of his PAN Card was 23.12.1998 and at that time, he was posted in Faridabad. However, thereafter, he was transferred to Rohtak and subsequently, to Delhi. The petitioner stated that at the relevant time i.e. 27.03.2021, he was not posted at Faridabad and thus had no concern with the address given in the notice under Section 148 of the Act. The petitioner further stated that he had given an application for change of address and on his application, the address on the PAN Card must have been changed. 14. The petitioner also invited our attention to the communication dated 10.02.2022. He stated that as per this document, his objections were dismissed vide order dated 09.02.2022. It is stated that forgery has been committed by the department as an order cannot be of two dates i.e. of 09.02.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 148are illegal and, thus, the notice and all further actions be quashed and set aside. 16. The petitioner in the compilation filed by him has relied upon following judgments:- Tata Capital Finance Services Ltd. vs Assistant Commissioner of Income Tax, Circle 1 (3) Ors. W.P.(C) No.546/2022 Sabh Infrastructure Ltd. vs. Assistant Commissioner of Income Tax, W.P.(C)1357/2016 Omkar Nath vs National Faceless Centre, Delhi Another; WP (C) No. 6158/2021 Daujee Abhushan Bhandar Pvt. Ltd. vs Union of India 2 Others, WRIT TAX No. 78/2022 Ghaziabad vs Globus Construction Pvt. Ltd. ITA No. 1185/Del./2020 CIT, Shimla vs. M/s Green World Corporation, (2009) 314 ITR 81 Commissioner of Income Tax Others. vs Chhabil Das Agarwal (2014) 1 SCC 603 Assistant Commissioner of Income Tax Another vs M/S Hotel Blue Moon (2011) 32, ITR 362 SC SK Srivastava, IRS vs Union of India and Others; WP (C) NO 6691/2014 Income Tax Officer, Ward 2(3), Noida vs Neeraj Goel, ITA NO 6290/Del/2017 Income Tax Officer, Ward 2(3), Noida vs Neeraj Goel, ITA NO 6290/Del/2017 SK Srivastava, IRS vs Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the prayer of the assessee and set aside the impugned assessment order as well as consequential notices, demand notice issued under Section 156 and notice initiating penalty proceedings u/s 270A of the Act on the grounds that assessee was not granted an opportunity of personal hearing as prescribed under Section 144B (7)(vii) of the Act and further granted liberty to AO to proceed further as per law, if so desired. The petitioner submitted that he was also not provided an opportunity of personal hearing. 21. The petitioner has further relied upon Dauji Aabhushan Bhandar (Supra) wherein, it was inter-alia held that the point of time when a digitally signed notice in the form of electronic record is entered into computer resources outside the control of the originator i.e., the Assessing Authority that shall be the date and time of issuance of notice under Section 148 with read with Section 149 of the Act. The petitioner stated that in the present case, there is no material on the record showing that the notice after having been digitally signed entered into computer resources outside the control of the originator i.e., the Assessing Authority on or before 31.03.2021. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statutory order passed by NFAC is to be void ab-initio. Submissions made on behalf of the Respondents/Revenue:- 28. Sh. Puneet Rai, learned counsel for the Revenue stated that the writ petition filed by the petitioner is not maintainable as there is an alternate efficacious remedy provided under the law. Sh. Rai stated that the arguments raised by the petitioner are beyond pleadings and therefore may not be taken into consideration. It has further been stated that the petitioner did not ask for any opportunity to appear through Video Conferencing. It was stated that the petitioner can file an appeal if he is aggrieved by the assessment order. Sh. Rai invited our attention to the notification dated 31.03.2021, issued by the Director, Central Board of Direct Taxes. In the said notification in exercise of powers conferred by sub Sections (1), (2) and (5) of Section 120 of the Act, the income tax authorities of NAFAC mentioned in the notification were authorized to exercise the powers and functions of the A.O. to facilitate the conduct of the faceless assessment proceedings under Section 144 B of the said act. 29. Mr. Rai further submitted that the contention of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowers the CBDT to issue directions and orders, wherever it is considered necessary or appropriate for the proper management of the work, require to or more Assessing Officers to exercise and perform, concurrently, the power and functions in respect of any area or persons, or class of persons or incomes or classed of income or cases or classes of cases. The relevant provisions of the Act which empowers Revenue to make the Assessment and relevant notifications issued with regard to E Assessment Scheme and Faceless Assessment Scheme are as under: a) Section 120 of the Act specifies the Jurisdiction of the Income Tax Authorities. b) Section 143(3A) of the Act empowering the Government to make an Assessment scheme and notify the same in the Official Gazette. c) Section 143(3B) of the Act for giving effect to the scheme made u/s 143(3A). d) Section 144B of the Act specifies the complete procedure of Faceless Assessment wherein sub section (3) empowers the Board to set up Centres and units, namely National Faceless Assessment Centre, Regional Faceless Assessment Centre, Assessment Units, Verification units, technical units and review units. Sub section (4) specifies t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions of petitioner 37. In rebuttal, the petitioner stated that all notifications mentioned by the standing counsel are prior to Section 144B. Section 144B has been brought to the statute vide the Finance Act, 2021 wef 01.04.2022. The petitioner stated that as the notice under Section 148 has been served on 24.12.2021, therefore, in view of the judgment of this Court in the case of Mon Mohan Kohli vs. Assistant Commissioner of Income Tax Anr., W.P.(C) No.6176/2021, the proceedings are liable to quashed 38. The petitioner stated that the alleged notice dated 27.03.2021 issued under Section 148 of the Act has not been signed. Our attention is also invited to Instructions No. 8/2017 issued by the department of CBDT dated 29.09.2017 whereby in Rule 5.2, it has been provided that all department orders/communications/notices being issued to the assessee through the e-proceeding facility are to be signed digitally by the assessee. The petitioner has reiterated that the notice under Section 148 of the Act and all subsequent actions taken by the revenue are liable to be quashed. Analysis Findings 39. We have considered the submission and perused the record. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provide any deviation from the principles of assessment as provided under various provisions of the Act. The Faceless Assessment Scheme merely provides the procedure to be followed for the purpose of faceless assessment. The contention of the petitioner that NAFAC does not fall within the authority of law as provided under Article 265 of the Constitution of India, does not hold any force. The authority as prescribed under the Income Tax Act remains the same. The legislature has brought a Scheme only to make the procedure faceless. The principles of law and other parameters as provided under the law for the purpose of assessment remains the same. In order to keep pace with dynamics of the changed environment, we have to march step by step towards making the systems efficient and transparent. 44. Vide notification dated 12.09.2019 the Central Government in exercise of the powers conferred by Sub-Sections (3A 3B) of Section 143 of the Act, 1961(43 of 1961) issued the E-Assessment Cheme. The notification provided that the provisions of Clause (7A) of Section 2, Section 92CA, Section 120, Section 124, Section 127, Section 129, Section 131, Section 133, Section 133A, Section 133C, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untability. The object is to eliminate the human interface between the Income Tax Authority and assessee to the extent technologically feasible. 48. It is also to be borne in mind that with the increasing economy the number of income tax assesses are also bound to increase manifold. We will have to take a visionary view to ensure that this increasing volume is handled in a better and efficient manner. There has to be a paradigm shift in handling of the work by the Income tax Authorities. If the contention of the petitioner is accepted, it will be a retrograde step. This court thinks that there is no illegality in the National Faceless Assessment Scheme as provided in the statute under Section 144B. The disposal of the objections and framing of the assessment has actually been done by the Assessing Officer. The only difference is that unlike earlier, the orders have been conveyed by NAFAC instead of A.O. directly. 49. We consider that the contention raised by the petitioner that National Faceless Assessment Centre as provided under Section 144B has no authority to frame the assessment is without any basis. 50. Before embarking upon other issues raised by the petitioner, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d; iv. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; v. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and vi. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 53. We consider that in the writ jurisdiction this Court cannot enter into the arena of examination of factual-matrix. The Court can interfere in the writ jurisdiction only if there is a violation of principle of natural justice or the action of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by the Apex Court in the case of GKN Driveshafts (India) Ltd. v. Income Tax Officer Ors. (2003) 259 ITR 19(SC), the petitioner is not even entitled to raise objections to the notice issued under the Act. It is pertinent to mention that despite the petitioner not following the mandate enunciated in GKN Driveshafts (Supra), the revenue responded to the objections filed by the petitioner and disposed of the same vide order dated 09.02.2022 supplied to the petitioner vide letter dated 10.02.2022 58. The impugned notice in the present case is dated 27.03.2021. The notice has also been digitally signed on the same day. Thus, the contention of the petitioner that the notice under Section 148 is beyond limitation does not hold any force and is rejected. 59. The address at which notice was sent by the Revenue is, one of the addresses mentioned by the petitioner on his portal as per Section 282 of the Act read with Rule 127 of the Income Tax Rules. Further, the notice under Section 148 was uploaded on the E-filing portal of the petitioner on 27.03.2021.The petitioner has himself chosen the communication address to be of Faridabad, Haryana which is clearly reflected in the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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