Auroglobal Comtrade Private Limited v. The Chairman, Central Board of Direct Taxes & others) and the other b
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.9191, 8217, 9940, 9941, 9952, 9964, 10693, 10697, 10699, 10892, 11065, 11075, 11640, 12038, 12328, 12886, 14550, 14552, 14554, 14927, 16836, 17972, 19288, 19474, 20073, 20533, 20611, 20947, 21572, 21573, 22817, 31494, 31541, 23880 and 26752 of 2022 Kailash Kedia and others …. Petitioners Mr. Jagabandhu Sahoo, Senior Advocate assisted by Ms. Kajal Sahoo (In W.P.(C) No.9191 of 2022), Mr. Sidhartha Ray, Advocate, (In W.P.(C) Nos.8217, 9940, 9952, 9964, 11640, 17972, 19288, 19474, 20073, 20533, 20611, 20947, 21572, 21573, 31494, 31541, 23880 & 26752 of 2022), Mr. Rudra Prasad Kar, Advocate (In W.P.(C) Nos.9941, 10892, 11075, 14550, 14552, 14554, 16836 & 22817 of 2022), Mr. Basudev Panda, Senior Advocate assisted by Mr. Bijay Panda, Advocate, (In W.P.(C) Nos.10693, 10697, 10699 & 14927 of 2022), Mr. Saswat Kumar Acharya, Advocate (In W.P.(C) Nos.11065 and 12886 of 2022), Mr. Sunil Mishra, Advocate (In W.P.(C) No.12038 of 2022) and Mr. S. S. Padhy, Advocate (In W.P.(C) No.12328 of 2022) Income Tax Officer, Ward 1, Jharsuguda and others …. Opposite Parties -versus-
Legal Reasoning
Mr. Tusar Kanti Satapathy, Senior Standing Counsel assisted by Mr. A. Kedia, Junior Standing Counsel for the Revenue Department (In W.P.(C) Nos.8217, 9941, 10693, 12038, 16836, 22817, 31494 & 31541 of 2022) and Mr. Radheshayam Chimanka, Senior Standing Counsel (In W.P.(C) No.14927 of 2022) & Mr. S. S. Mohapatra, Senior Standing Counsel for the Revenue Department (In W.P.(C) Nos. 9191, 9940, 9952, 9964, 10697, 10699, 10892, 11065, 11075, 11640, 12328, 12886, 14550, 14552, 14554, 19288, 19474, 20073, 20533, 20611, 20947, 21572, 21573, 23880 & 26752 of 2022) Page 1 of 6 CORAM: THE CHIEF JUSTICE JUSTICE M. S. RAMAN
Decision
ORDER 01.12.2022 Order No. 09. 1. In all these writ petitions, the challenge is to: (i) A notice issued to the Petitioner-Assessees under Section 148- A(1)(b) of the Income Tax Act, 1961 (‘Act’); and (ii) The consequential order passed under Section 148-A(1)(d) of the Act. 2. While issuing notice in all these writ petitions, interim orders were passed restraining the Respondent/Income Tax Department (‘Department’) from taking coercive action against the Petitioners. 3. During the pendency of the present petitions, a coordinate Division Bench (DB) of this Court delivered two judgments. One is the judgment dated 6th September, 2022 delivered by a DB of which one of us (M.S. Raman, J.) was a member in W.P.(C) No.15102 of 2022 (Auroglobal Comtrade Private Limited v. The Chairman, Central Board of Direct Taxes & others) and the other by the same DB on 27th September, 2022 in W.P.(C) No.17176 of 2022 (Stewart Science College v. Income Tax Officer, Ward-1 (1), both of which declined to accept similar challenge to the notices under Section 148-A(1)(b) of the Act as well as the consequential order under Section 148-A(1)(d) of the Act by holding that the Petitioners/Assessees in those cases would have a full opportunity of urging all the grounds of challenge at Page 2 of 6 the stage of challenging the consequential order in the reassessment proceedings consequent upon the notice under Section 148 of Act. 4. Meanwhile, a DB of the Punjab and Haryana High Court in an order dated 2nd June, 2022 in CWP No.10219 of 2022 (Anshul Jain v. Principal Commissioner of Income Tax) held likewise. In other words, it was held that there was no warrant for interference by the Court at the stage where an order had been passed under Section 148- A(1)(d) of the Act and that all the grounds of challenge to such order could be urged at the stage of challenging the order passed in the reassessment proceedings consequent upon the notice under Section 148 of Act. 5. The above order of the High Court of Punjab and Haryana in Anshul Jain v. Principal Commissioner of Income Tax (supra) was challenged in the Supreme Court of India by the unsuccessful Petitioner in SLP(C) No.14823 of 2022. While dismissing the said SLP on 2nd September 2022, the Supreme Court of India passed the following order: “What is challenged before the High Court was the re- opening notice under Section 148A(d) of the Income Tax Act, 1961. The notices have been issued, after considering the objections raised by the petitioner. If the petitioner has any grievance on merits thereafter, the same has to be agitated before the Assessing Officer in the re-assessment proceedings. Under the circumstances, the High Court has rightly dismissed the writ petition. No interference of this Court is called for. Page 3 of 6 The present Special Leave Petition stands dismissed. Pending applications stand disposed of.” 6. It has been brought to the notice of this Court that notwithstanding the above order of the Supreme Court of India, the Calcutta High Court has in an order dated 15th September, 2022 in APO/83/2022 (Dinesh Kumar Goyal v. Union of India), interfered with an order under Section 148-A(d) of the Act on the ground that ‘personal hearing’ was not given to the Assessee prior to the passing of the said order. It has also been brought to the notice of this Court that the High Court of Punjab and Haryana itself has subsequently in Kulwant Singh v. Union of India issued notice in a writ petition which raised a similar challenge as in the present petitions before this Court. 7. On the side of the Petitioners, it was urged that the aforementioned order dated 2nd September, 2022 of the Supreme Court of India in Anshul Jain v. Principal Commissioner of Income Tax (supra) cannot constitute a precedent and is, therefore, not binding on this Court. In support of such submission, reliance was placed on a large number of judgments including Malook Singh v. State of Punjab MANU/SC/0795/2021, Tikaram v. State of Uttar Pradesh (2009) 10 SCC 689, Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd