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TMI Blog2024 (7) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India declaring that approval dated 06/04/2023 granted by Respondent no. 2 u/s. 151 as invalid. c. To issue writ of Mandamus or direction or order in the nature of Mandamus or writ of Certiorari or any other writ under Article 226 of the Constitution of India declaring order dated 06/04/2023 passed u/s. 148A (d) of the Act being "Exhibit F" as invalid. d. To issue writ of Mandamus or direction or order in the nature of Mandamus or writ of Certiorari or any other writ under Article 226 of the Constitution of India declaring that the consequent notice dated 06/04/2023 issued u/s. 148 being "Exhibit G" as invalid." 3. It is the petitioner's case that she is regularly assessed to income tax. She had undertaken a project by name "Green World" at Dighe, Navi Mumbai which was in progress in which she was the co-developer along with one M/s. Akshar Space Private Limited. The petitioner was following the project completion method of accounting. It is also contended that the ITAT, Mumbai while passing the orders for assessment years 2012-13, 2016-17 and 2017-18, had accepted that the petitioner was following project completion method of accounting and accordingly, adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2023 contesting the notice stating that the petitioner was following 'project completion method' and accordingly, no income on transaction of sale of immovable property on which TDS was deducted under Section 194IA of the Act, as set out in the notice, was offered to tax. It was also pointed out that the advance received from the customers was disclosed in balance sheet as on 31 March, 2016. In so far as the undisclosed income as asserted by the department was concerned, it was stated that the details in that regard were not furnished to the petitioner. 9. The petitioner has contended that however without considering the petitioner's reply and the petitioner's case, respondent no. 1 passed the impugned order dated 06 April, 2023 under Section 148A(d) to hold that income chargeable to tax has escaped assessment and accordingly, issued the impugned notice dated 06 April, 2023 under Section 148 of the Act. It is on such premise, the petitioner is before the Court praying for reliefs as noted hereinabove. 10. The contentions as urged on behalf of the petitioner in supporting the prayers is that the order passed by the assessing officer under Section 148A (d) of the Act is inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2), Mumbai & Ors. [2024] 162 taxmann.com 225 (Bom)(HC). There are other grounds on which the impugned notices and the impugned order have been challenged, however, considering the aforesaid grounds, the same are not required to be gone into. 12. Mr. Sharma, learned counsel for the revenue has opposed the petition. He has drawn our attention to the reply affidavit filed on behalf of the respondents. Mr. Sharma would fairly submit that insofar as the impugned notice not being issued under the faceless assessment mechanism, the issue would stand squarely covered by the decision of the Division Bench in Hexaware Technologies Limited (supra). Insofar as the merits of the matter are concerned, Mr. Sharma is also not in a position to demonstrate that the contentions as urged on behalf of the petitioner need to be rejected. 13. We have heard learned counsel for the parties and perused the impugned order and the impugned notices. We find much substance in the contention as urged on behalf of the petitioner that the Jurisdictional Assessing Officer could not have issued a notice under Section 148A (b) of the Act, outside the Faceless Assessment Scheme. In the context of the contentions as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (b) and (c) of sub-section (1) of the Act. Sub-section (2) provides that the Central Government may, for the purpose of giving effect to the scheme made under sub-section (1), by notification in the Official Gazette, direct that any of the provisions of the Act shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in the notification. The proviso below sub-section (2) makes it explicitly clear that such direction shall not be issued after the 31st March, 2022. Sub-Section (3) provides that every notification which would be in the nature of a subordinate legislation to be issued under sub-section (1) and sub-section (2) shall, as soon as may be after the notification is issued, be laid before each House of Parliament. 15. In pursuance of Section 151A, the Central Government by notification dated 29 March, 2022 notified a scheme in regard to faceless assessment inter alia providing that the assessment, reassessment or recomputation of income under section 147 of the Act as also the issuance of notice under Section 148 of the Act, shall be through automated allocation, in accordance with risk management strategy formulated by the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers conferred by sub-sections (1) and (2) of Section 151A of the Act, CBDT issued a notification dated 29th March, 2022 [Notification No. 18/2022/F. No. 370142/16/2022-TPL and formulated a Scheme. The Scheme provides that - (a) the assessment, reassessment or recomputation under Section 147 of the Act, (b) and the issuance of notice under Section 148 of the Act, shall be through automated allocation, in accordance with risk management strategy formulated by the Board as referred to in Section 148 of the Act for issuance of notice and in a faceless manner, to the extent provided in Section 144B of the Act with reference to making assessment or reassessment of total income or loss of assessee. The impugned notice dated 27th August, 2022 has been issued by respondent no. 1 (JAO) and not by the NFAC, which is not in accordance with the aforesaid Scheme. Section 151A of the Act gives the power to the Central Board of Direct Taxes ("CBDT") to notify the Scheme for : (i) the purpose of assessment, reassessment or recomputation under Section 147; or (ii) issuance of notice under Section 148; or (iii) conducting of inquiry or issuance of show cause notice or passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department and does not give any discretion to the Department to choose whether to follow it or not. That automated allocation is defined in paragraph 2(b) of the Scheme to mean an algorithm for randomised allocation of cases by using suitable technological tools including artificial intelligence and machine learning with a view to optimise the use of resources. Therefore, it means that the case can be allocated randomly to any officer who would then have jurisdiction to issue the notice under Section 148 of the Act. It is not the case of respondent no. 1 that respondent no. 1 was the random officer who had been allocated jurisdiction. 37. When an authority acts contrary to law, the said act of the Authority is required to be quashed and set aside as invalid and bad in law and the person seeking to quash such an action is not required to establish prejudice from the said Act. An act which is done by an authority contrary to the provisions of the statue, itself causes prejudice to assessee. All assessees are entitled to be assessed as per law and by following the procedure prescribed by law. Therefore, when the Income Tax Authority proposes to take action against an assessee with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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