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TMI Blog2022 (6) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has also challenged the notice dated 04.03.2022 issued under Section 144 of NFAC for framing an ex-parte assessment of Writ petitioner for A.Y. 2016-17. The petitioner has submitted that the petitioner did not have any income, as defined under Section 4 and therefore was not obliged to file return under Section 139 (1). It has been further submitted that the Principle (CIT) (Delhi) had no jurisdiction over the address at Faridabad which is in the State of Haryana, on which notice under Section 148 was issued. 3. The petitioner has also challenged the notice issued under Section 148 as the same was not served within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 this amount as an "advance" that would have to be returned to the respondents by the petitioner in case this Court decides the case against the petitioner. Therefore, this amount cannot be assessed as "income" and would remain as an Advance & is a liability in the hands of the petitioner. 8. The petitioner stated that the action of the respondent Nos. 4 and 5 are motivated on account of various litigations pending before Special Judge, CBI, Ghaziabad, High Court of Allahabad and Supreme Court. 9. The petitioner has stated that notice under Section 144 of the Act was issued on 04.03.2022 for ex parte assessment wherein respondent nos. 4 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 09.02.2022 and 10.02.2022. The attention was also invited to Para- 5 of the said order whereby the date of the notice under Section 148 has been written as 27.01.2021 and stated that in fact this entire order is a forged and fabricated document. The petitioner also stated that in the assessment order dated 25.03.2022, it has falsely been stated that notice under Section 148 of the Act issued on 27.03.2021 was duly served upon him through Speed Post ED525117940IN dated 31.03.2022. The petitioner stated that he had received the information through RTI that no such consignment details were available. 15. The petitioner invited our attention to Article 265 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 of India & Others. O.A No.2094/2014 * Union of India &Ors. vs SK Srivastava & Ors. WP(C) 6768/2015 * Union of India &Ors. vs SK Srivastava &Ors. WP(C) 6768/2015 17. The petitioner stated that in Tata Capital Finance Services (supra), the High Court of Bombay inter alia held that the personal hearing shall be given and minimum seven working days advance notice of such personal hearing be granted. The petitioner stated that the A.O. has not followed the judicial dictum and failed to afford personal hearing to the petitioner. 18. In Sabh Infrastructure v. Assistant Commissioner of Income Tax, the guidelines laid down by the Court, in the matter of reopening of assessments, are as follows; (i) While communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol 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. 22. The petitioner has further relied upon Commission of Income Tax v. Chhabildass Aggarwal (supra). The petitioner stated that the Hon'ble Supreme Court in this case has held that a writ may not be entertained if the remedy provided under the Statute is substantial and not a mere formality. The petitioner stated that in the present set of facts the remedy provided under the statute is a mere formality. 23. The petitioner has further relied upon Assistant Commissioner of Tax & Anr. v. Hotel Blue Moon, (Supra) whereby the Supreme Court opined that there is no reason to restrict the scope and meaning of the expression "so far as may be apply" as mentioned in Section 158 BC (b) and held that where the Assessing officer in repudiation of the return filed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification 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 petitioner that the A.O. lacks the territorial jurisdiction in issuing the notice under Section 148 of the Income Tax Act is completely baseless. The Petitioner has been filing his ITR before the same J.A.O. i.e Circle 67(1) who has issued the Notice under Section 148 dated 27.03.2021 to the petitioner. That the petitioner has filed his ITR for A.Y. 202021 also under Delhi Jurisdiction, Circle 67(1) and it is admitted position by the petitioner that his PAN is also at Circle 67(1), Delhi. 30. Mr. Rai submitted that no prejudice is caused to the petitioner as the Respondent No. 2 issued the SCN on 04.03.2022 to the petitioner which is also mentioned in the Index of the writ petition filed by the assessee and also mentioned in the Final Assessment order dated 25.03.2022. The respondent was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect 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 that the Assessment unit, verification unit, technical unit and review unit shall have the Income Tax Authorities. Therefore, the submission of the Petitioner that NAFAC is not an Income Tax Authority is without any merit as the Income Tax Authorities as defined u/s 116 of the Act are part of the Units as defined u/s 144B(4), hence the functions of assessment are performed by an Income Tax Authority. 34. Sh. Rai stated that the allegations of the petitioner that the personal hearing was not granted is also denied as the Assessment order dated 25.03.2022 clearly states that the Personal hearing through VC was granted to the Petitioner which he did not avail of. 35. Sh. Rai stated that Section 119 of the Act, 1961 provides that the CBDT may issue orders, instructions and directions to other income tax authorities as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gitally 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. This Court is of the view that the A.O. has exercised his jurisdiction in accordance with the law and therefore there is no ground to set aside the same. 40. In order to render a finding on the plea raised by the petitioner it is necessary to understand the Faceless Assessment's Scheme. The Central Government in the Union Budget in 2019 introduced the scheme of faceless assessment. The objective of the Scheme was to eliminate the human interface between the taxpayers and the Income Tax Department. The Scheme merely lays down the procedure, to carry out a faceless assessment through electronic mode. In the Faceless Assessment Scheme, the purpose is to complete all the assessments/cases in a faceless way, in a faceless environment except for certain categories namely cases assigned to international tax charges and those assigned to central circle which are not included in this Scheme. 41. The main objective behind the scheme is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Section 134, Section 142, Section 142A, Section 143, Section 144 A, Section 144 BA, Section144 C and chapter XXI of the Act shall apply to the assessments made in accordance with the Scheme subject to certain exceptions, modifications and adaptation as provided in the notification. By way of notification dated 30.08.2020 the word "E-Assessment" is substituted by "Faceless Assessment". The notification dated 31.03.2021, authorizes the Principal Commissioner of Income Tax, Principal Commissioner of Income Tax (Verification Unit), Additional Commissioner of Income Tax, Joint Commissioner of Income Tax and the Deputy Commissioner of the Income Tax (Regional Faceless Assessment Centre) (Verification Unit) and confers them jurisdiction in respect of all cases of persons in respect of all incomes within the limits of all states and Union Territories of India with respect to whom there is any information in the possession of Directorate of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion 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 is necessary to examine the jurisdiction of the writ Court under Article 226 of the Constitution of India. Exercise of jurisdiction by High Court under Article 226 of Constitution of India is discretionary and not obligatory without being exhaustive. When a statutory forum is created by law for redressal of grievances, a Writ Petition should not be entertained ignoring the statutory dispensation. The Income Tax Act, 1961 provides complete machinery for the assessment/ reassessment of tax, imposition of penalty and for obtaining relief with respect to an improper order. One ought to not abandon this machinery and invoke the jurisdiction of the High Court u/A 226 of the Constitution when adequate remedy is available to him by way of appeal as has been held in CIT vs Chhabil Dass Agarwal (2013) 357 ITR 357 (SC). 51. Further in Asst. Collector, Central Excise v. Dunlop India Ltd and Ors, [1985(19) E.L.T.22 (SC)]- it has been held that Article 226 is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 the respondent is ex-facie illegal and suffers from perversity. 54. Section 149 (1) provides the time period for issuance of notice under Section 148 of the Act. The inter play of Section 148 and Section 149 has come up for discussion before Hon'ble Supreme Court in R.K. Upadhaya vs. Shanabhai P. Patel 1987 166 ITR 163 (SC). In this case, it was inter alia held as under; "The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different. What used to be contained in s. 34 of the 1922 Act has been spread out into three sections, being sections. 147, 148 and 149 of the 1961 Act. A clear distinction has been made out between "issue of notice" and "service of notice" under the 1961 Act. Section 149 prescribes the period of limitation. It categorically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 60. 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 record that the address at which the notice was sent was mentioned in the PAN details of the petitioner. In this regard, it is necessary to peruse Section 139A (5) it provides as under: "(5) Every person shall- (a) quote such number in all his returns to, or correspondence with, any income-tax authority; (b) quote such number in all challans for the payment of any sum due under this Act; (c) quote such number in all documents pertaining to such transactions as may be prescribed by the Board in the interests of the revenue, and entered into by him: Provided that the Board may prescribe different dates for different transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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