Full Judgment Text
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decision delivered on: 04.06.2021
+ W.P.(C) 5849/2021
GURGAON REALTECH LIMITED .....Petitioner
Through: Mr. Ajay Vohra, Senior Advocate
with Mr. Aditya Vohra, Advocate.
versus
NATIONAL FACELESS ASSESSMENT CENTRE DELHI
(EARLIER NATIONAL E-ASSESSMENT CENTRE DELHI)
..... Respondent
Through: Mr. Ajit Sharma, Senior Standing
Counsel for revenue
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
RAJIV SHAKDHER, J. (ORAL):
[Court hearing convened via video-conferencing on account of COVID-19]
CM No. 18316/2021
1. Allowed, subject to just exceptions.
CM No. 18317/2021
2. The prayer made in the captioned application is to grant exemption
from filing sworn/notarised and/or affirmed affidavits along with the present
petition. The captioned application is disposed of with a direction to the
petitioner to place on record the duly sworn/notarised and/or affirmed
affidavits, within three days from the resumption of the normal and usual
work pattern by this court.
W.P.(C) 5849/2021 & CM No.18315/2021 [Application filed on behalf of
the petitioner seeking stay on the operation of the impugned assessment
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By:HARIOM
Signing Date:11.06.2021
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order and consequential actions]
3. Issue notice. Mr. Ajit Sharma accepts service on behalf of the
respondent/revenue.
4. Mr. Sharma says that since an issue concerning the jurisdiction of the
Assessing Officer has been raised, he does not wish to file a formal reply
and will argue the matter based on the record presently available with the
Court.
5. Thus, with the consent of the parties, the writ petition is taken up for
hearing and final disposal.
6. Via the instant petition, challenge has been laid to the assessment
order dated 15.04.2021 passed by the respondent/revenue under Section
143(3) read with Sections 143(3A) and 143(3B) of the Income Tax Act,
1961 (in short the “Act”).
6.1. Besides this, challenge has also been laid to the notice of demand
issued under Section 156 of the Act as well as notice for initiating penalty
proceedings issued under Section 274 read with Section 270A of the Act.
These notices are also dated 15.04.2021.
7. To be noted, the impugned assessment order concerns the assessment
year („AY‟) 2018-2019.
8. The principal ground on which the impugned assessment order has
been challenged is that the said order could not have been passed under
Sections 143(3A) & 143(3B) of the Act after 01.04.2021.
8.1 In support of this plea, Mr. Ajay Vohra, learned senior counsel, who
appears on behalf of the petitioner, has relied upon the provisions of
Sections 143(3D) and Section 144B of the Act, as also the Central Board of
Direct Taxes (in short „CBDT‟) notification dated 31.03.2021. (See
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By:HARIOM
Signing Date:11.06.2021
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Annexure „F‟, which is appended on page 55 of the paper book). Pertinently,
the said notification has been issued by the CBDT in exercise of its power
under Section 144(B)(2) of the Act.
8.2. Mr. Vohra, thus, submits that the impugned assessment order, being
without jurisdiction, is non-est in the eyes of law.
8.3. Mr. Vohra fairly informs us that an appeal against the impugned
assessment order was filed by the petitioner with the Commissioner of
Income Tax (Appeals) [in short „CIT(A)‟] on 29.05.2021, albeit , having
regard to the fact that at that juncture, the period of limitation was expiring
on 31.05.2021. It is, however, contended by Mr. Vohra that since the
Assessing Officer lacked the jurisdiction to pass the impugned assessment
order, the writ petition is maintainable, despite an appeal having been filed
1
by the petitioner. [See Kiran Singh vs. Chaman Paswan , (1955) 1 SCR
117]
8.4. On the other hand, Mr. Sharma contends that since the petitioner has
already taken recourse to the alternate remedy by preferring an appeal with
CIT(A) against the impugned assessment order, the issues raised in the writ
petition by the petitioner should be agitated before the said forum.
9. We have considered the submissions made by the learned counsel for
the parties.
9.1. To our minds, if the challenge to the assessment order is made on the
ground that it was passed without jurisdiction, then, notwithstanding the fact
1
“ 6. … It is a fundamental principle well established that a decree passed by a
court without jurisdiction is a nullity, and that its invalidity could be set up whenever and
wherever it is sought to be enforced or relied upon, even at the stage of execution and
even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of the subject-matter of the action, strikes at the very
authority of the court to pass any decree, and such a defect cannot be cured even by
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By:HARIOM
Signing Date:11.06.2021
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that an appeal was filed, albeit , only to ensure that the limitation is not
crossed, is not an impediment in proceeding ahead with the matter. In this
particular case, the reason that we are proceeding ahead with the matter, is
that, we are persuaded by the arguments advanced by Mr. Vohra that the
impugned assessment order dated 15.04.2021 could not have been passed
under Section 143(3A) and 143(3B) after March 31, 2021, having regard to
the provisions of Section 143(3D) of the Act. For the sake of convenience,
the said provisions are extracted below:
“ Section 143. Assessment
xxx xxx xxx
(3A) The Central Government may make a scheme, by notification in the Official
Gazette, for the purposes of making assessment of total income or loss of the
assessee under sub-section (3) so as to impart greater efficiency, transparency and
accountability by—
(a) eliminating the interface between the Assessing Officer and the
assessee in the course of proceedings to the extent technologically
feasible;
(b) optimising utilisation of the resources through economies of scale
and functional specialisation;
(c) introducing a team-based assessment with dynamic jurisdiction.
(3B) The Central Government may, for the purpose of giving effect to
the scheme made under sub-section (3A), by notification in the
Official Gazette, direct that any of the provisions of this Act relating
to assessment of total income or loss shall not apply or shall apply
with such exceptions, modifications and adaptations as may be
specified in the notification:
Provided that no direction shall be issued after the 31st day of
March, 2021,
xxx xxx xxx
(3D) Nothing contained in sub-section (3A) and sub-section (3B) shall
apply to the assessment made under sub-section (3) or under section
144, as the case may be, on or after the 1st day of April, 2021.]”
9.2. Besides this, Mr. Vohra is also right in his contention that the CBDT
notification dated 31.03.2021, to which, we have made a reference
consent of parties. … “
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hereinabove, also says, in effect, the same thing, i.e., that after 01.04.2021,
the assessment order could have only have been passed in consonance with
the provisions of Section 144B of the Act.
10. In view of the foregoing reasons, we are inclined to set aside the
impugned assessment order dated 15.04.2021 as also the notice of demand
issued under Section 156 of the Act and the notice for initiating penalty
proceedings issued under Section 274 read with Section 270A of the Act.
10.1. That being said, the respondent/revenue will have liberty to proceed
with the assessment process, albeit, under the provisions of Section 144B of
the Act. Needless to add, if a show cause notice-cum-draft assessment order
is served on the petitioner, an opportunity would be given to the petitioner to
file its response/objections to the same. Furthermore, if there is a variation
proposed in the income of the petitioner, an opportunity of personal hearing
will also be accorded. In sum, the procedure prescribed under Section 144B
of the Act will be followed by the respondent/revenue.
11. The writ petition is disposed of in the aforesaid terms. Pending
applications also stands closed. The case papers shall stand consigned to the
record.
RAJIV SHAKDHER, J
TALWANT SINGH, J
JUNE 4, 2021/ mr
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Digitally Signed
By:HARIOM
Signing Date:11.06.2021
22:54:43