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TMI Blog2024 (8) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... parties, heard finally. 2. This Writ Petition under Article 226 of the Constitution of India is filed by the Petitioner praying for the following substantive reliefs : (a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or any other writ order or direction under Article 226 of the Constitution of India calling for the records of the case leading to the issue of the impugned initial notices (Exhibit E) dated 21st March 2023 and (Exhibit J) dated 31st March 2023, passing of the impugned order (Exhibit L) dated 1st May 2023 and the issue of the impugned notice (Exhibit M) dated 1st May 2023 and after going through the same and examining the question of legality thereof quash, cancel and set aside the impugned initial n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 3. The notice under Section 148 of the Income Tax Act, 1961 ("the Act") dated 1 May, 2023 ("impugned notice") has been issued to the Petitioner in respect of returns filed by the Petitioner-Assessee for the Assessment Year 2016-17. 4. The primary contention as urged by Mr. Mistri, Learned Senior Counsel on behalf of the Petitioner is that the impugned notice as also the prior procedure followed for issuing notice dated 31 March, 2023 under Section 148A (b) and an order dated 1 May, 2023 under Section 148A (d) are undertaken in breach of the provisions of Section 151A read with the provisions of Section 144B of the Act mainly that it is outside the faceless mechanism. It is on such ground, it is contended that the reliefs as prayed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment. G) On 1 May, 2023, the order under Section 148A (d) approving reassessment coupled with the impugned notice under Section 148 came to be issued. 6. Mr. Gupta, Learned Counsel for the Revenue fairly submits that the notice issued under Section 148A (b), the order passed thereon under Section 148A (d) and the consequent impugned notice issued under Section 148 of the Act are issued by the Jurisdictional Assessing Officer ("JAO") and not by a Faceless Assessing Officer ("FAO"), as required by the provisions of Section 151A of the Act. 7. To give effect to the provisions of Section 151A, the Central Government has issued a Notification dated 29 March 2022 whereby faceless mechanism has been introduced. Thus, necessarily by resorti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Scheme dated 29th March 2022 in paragraph 3 clearly provides that the issuance of notice "shall be through automated allocation" which means that the same is mandatory and is required to be followed by the 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of notice under Section 148 of the Act in a faceless manner, no notice is required to be issued under Section 148 of the Act in a faceless manner. In such a situation, not only clause 3(b) but also the first two lines below clause 3(b) would be otiose, as it deals with the aspect of issuance of notice under Section 148 of the Act. Respondents, being an authority subordinate to the CBDT, cannot argue that the Scheme framed by the CBDT, and which has been laid before both House of Parliament is partly otiose and inapplicable. ........" 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recent decision of this Court in Nainraj Enterprises Pvt. Ltd. Vs. The Deputy Commissioner of Income Tax, Circle-4(3)(1), Mumbai & Ors. Writ Petition (L.) No. 16918 of 2024 dated 02-07-2024., whereby in similar circumstances, this Court has allowed the petition considering the provisions of Section 151A of the Act. 10. Learned Counsel for the Petitioner has also drawn our attention to the decision of this Court in Kairos Properties Pvt. Ltd. vs. Assistant Commissioner of Income-tax and Ors. Writ Petition (L.) No. 22686 of 2024 dated 05-08-2024., where the Court considered the effect of scheme as notified by the Central Government under the notification dated 29 March, 2022. The Court, considering the relevant provisions, has held that this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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