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TMI Blog2023 (6) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... (respondent no.3) under Section 148 of the Income Tax Act, 1961 (for short 'the Act'), for the assessment year 2015-16 and sought directions to the respondents not to take any action in furtherance of the same. Contentions of petitioner 2. Though the contentions on merits are also raised, the emphasis of the petitioner is on the ground that the said notice is wholly without jurisdiction inasmuch as prior to issuance of the same, the jurisdiction to assess the petitioner, under the Income Tax Act, 1961, was transferred by respondent no.1 through an order issued under Section 127(2) of the Act on 15.03.2022 from respondent no.3 to the Income Tax Officer, Ward 30(1), New Delhi (respondent no.4). It is contended that the transfer of jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 127 of the Act came to his knowledge only on 30.03.2022, sometime thereafter and since he had issued notice under Section 148A (b) of the Act much earlier to his knowledge of transfer of jurisdiction, he had not committed any illegality in issuing the impugned notice. 6. It is also contended that PAN of the assessee was still not transferred by the office of Principal Commissioner, Income Tax-I, Chandigarh to ITO, Ward No.30 (1) New Delhi ( respondent No.4) and the Income Tax Business Application was still showing it under the jurisdiction of ITO Ward No.1, Shimla ( respondent no.3); that notice can only be issued online by the Assessing Officer under whose jurisdiction the PAN lies, and therefore, the notice under Section 148 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued notice under Section 148 of the Act much earlier to his knowledge of transfer of jurisdiction, because the order under Section 127(2) of the Act was issued on 15.03.2022 and was received by respondent no.3 on 30.03.2022, but the notice under Section 148 of the Act was issued on 01.04.2022, two days later. 10. It is contended that the issuance of show cause notice under Section 148A(b) of the Act on 22.03.2022 has no relevance, because Section 148A of the Act, merely provides the procedure for conducting enquiry, providing opportunity and passing an order prior to issuance of notice under Section 148 of the Act; and the petitioner in his reply dt. 29.03.2022 had brought to the knowledge of respondent no.3 that the jurisdiction to asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the parties. 15. We shall first consider the question about the maintainability of the Writ Petition to challenge the impugned notice under Sec.148 of the Act. 16. Ordinarily a Writ Petition would not lie against the show cause notice for the reason that it would not give rise to any cause of action. The exception is that if such show cause notice is issued without jurisdiction a Writ under Article 226 of the Constitution of India, would lie (Secretary, Ministry of Defence and others vs Prabhash Chandra Mirdha (2012) 11 SCC 565 and Whirlpool Corporation Vs Registrar of Trade Marks Mumbai and others) (1998) 8 SCC 1. 17. The Supreme Court in Calcutta Discount Co. Ltd. Versus Income Tax Officer, Companies District I, Calcutta and another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law laid down by this Court in Calcutta Discount Co. Ltd. v. CIT( 4 supra). We, thus, set aside the impugned judgments4 and remit the cases to the respective High Courts to decide the writ petitions on merits. 3. We may make it clear that this Court has not made any observations on the merits of the cases i.e. the contentions which are raised by the appellant challenging the move of the Income Tax Authorities to reopen the assessment. Each case shall be examined on its own merits keeping in view the scope of judicial review while entertaining such matters, as laid down by this Court in various judgments. 4. We are conscious of the fact that the High Court has referred to the judgment of this Court in CIT v. Chhabil Dass Agarwal( 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8A(b) of the Act to the petitioner, would not be relevant because the said provision i.e., Section 148A of the Act deals with conduct of enquiry before issuance of notice under Section 148 of the Act, as rightly contended by the learned counsel for the petitioner. The respondents cannot place reliance on sub-section (4) of Section 127 of the Act and contend that the transfer of the case can be made at any stage of the proceedings and the notice issued under Section 148 of the Act is not invalidated because in the instant case, the transfer of jurisdiction was done on 15.03.2022, much prior to the issuance of notice under Section 148A(d) and Section 148 of the Act on 01.04.2022. Had the transfer of jurisdiction happened after the issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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