Calcutta High Court
Merlin Projects Limited vs Joint Commissioner Of Income Tax … on 12 June, 2025
OD-1-23
ORDER SHEET
THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/290/2025
MERLIN PROJECTS LIMITED
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOLKATA AND ORS
WPO/291/2025
MERLIN PROJECTS LIMITED
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOLKATA AND ORS
WPO/292/2025
MERLIN PROJECTS LIMITED
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOLKATA AND ORS
WPO/293/2025
MERLIN PROJECTS LIMITED
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOLKATA AND ORS
WPO/294/2025
MERLIN PROJECTS LIMITED
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOLKATA AND ORS
WPO/295/2025
MERLIN LEISURES LIMITED
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOLKATA AND ORS
WPO/297/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
2
WPO/300/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/301/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/302/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/303/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/304/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/305/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/306/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/307/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
3
WPO/310/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOLKATA AND ORS
WPO/311/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/312/2025
MERLIN LEISURES LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/317/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/318/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/319/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/321/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
WPO/322/2025
MERLIN PROJECTS LTD
VS
JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE CENTRAL
RANGE 2 KOL AND ORS
4
BEFORE:
The Hon'ble JUSTICE RAJA BASU CHOWDHURY
Date : 12th June 2025
Appearance:
Mr. Pratyush Jhunjhunwala, Adv.
Mr. Naman Choudhury, Adv.
Ms. Akshara Shukla, Adv.
Mr. Aritra Nag, Adv.
... for the petitioners in item nos.2- 5, 14-16 & 19-23
Ms. Akshara Shukla, Adv.
Mr. Aritra Nag, Adv.
... for the petitioner
Mr. Abhratosh Majumder, Sr. Advocate
Mr. Pratyush Jhunjhunwala, Adv.
Mr. Rajarshree Kajaria, Adv.
Mr. Uttam Sharma, Adv.
... for the petitioners in item nos.6-8, 13, 17 & 18
Mr. Asok Kumar Chakrabarti, ASG
Mr. Aryak Dutt, Advocate
Mr. Soumen Bhattacharjee, Adv.
Mr. Ankan Das, Adv.
Ms. Shradhya Ghosh, Adv.
...for the Income Tax Authority
Mr. Prithu Dudheria, Adv.
...For Union of India in item no.9
Mr. Amit Sharma, Adv.
...For the Union of India in item nos. 11 & 17
Mr. Sumita Sarkar, Adv.
...For the Union of India in item nos. 10 & 18
Mr. Madhu Jana, Adv.
...for the Union of India in item no.8
Mr. Amal Kumar Datta, Adv.
...For Union of India
The Court :-
1. The above writ petitions raise a common question of law and have
been filed, inter alia, challenging the show cause notices issued
under Section 274 read with Section 271D of the Income Tax Act,
5
1961 (hereinafter refer to said 'Act') and the consequential demand
cum orders issued under Section 271D of the said Act.
2. The relevant show-cause notices with particulars and the
corresponding orders are extracted and noted down in a tabulated
form hereinbelow:
WPO No. Date of show- Date of Assessment
cause order/demand Year
with relevant
section
290 of 2025 20.02.2025 28.03.2025 under 2019-20
Section 271DA
291 of 2025 06.01.2025 30.03.2025 under 2020-21
Section 271D
292 of 2025 06.01.2025 29.03.2025 under 2019-20
Section 271D
293 of 2025 07.01.2025 29.03.2025 under 2017-18
Section 271D
294 of 2025 03.01.2025 30.03.2025 under 2018-19
Section 271D
295 of 2025 19.02.2025 29.03.2025 under 2017-18
Section 271D
297 of 2025 04.01.2025 30.03.2025 under 2016-17
Section 271E
300 of 2025 19.02.2025 30.03.2025 under 2020-21
Section 271D
301 of 2025 25.02.2025 30.03.2025 under 2019-20
Section 271DA
6
302 of 2025 19.02.2025 30.03.2025 under 2021-22
Section 271D
303 of 2025 20.02.2025 30.03.2025 under 2016-17
Section 271D
304 of 2025 19.02.2025 30.03.2025 under 2019-20
Section 271D
305 of 2025 19.02.2025 30.03.2025 under 2018-19
Section 271D
306 of 2025 20.02.2025 30.03.2025 under 2021-22
Section 271DA
307 of 2025 20.02.2025 30.03.2025 under 2018-19
Section 271DA
310 of 2025 19.02.2025 29.03.2025 under 2020-21
Section 271DA
311 of 2025 21.02.2025 31.03.2025 under 2020-21
Section 271DA
312 of 2025 (i) 17.10.2024 31.02.2025 under 2021-22
(ii) 21.02.2025 Section 271DA
317 of 2025 06.01.2025 30.03.2025 under 2021-22
Section 271E
318 of 2025 06.01.2025 30.03.2025 under 2020-21
Section 271E
319 of 2025 03.01.2025 30.03.2025 under 2017-18
Section 271E
321 of 2025 06.01.2025 30.03.2025 under 2019-20
Section 271E
322 of 2025 04.01.2025 30.03.2025 under 2018-19
Section 271E
7
3. The central issue for consideration in the above writ petitions is
whether the Assessing Officer is bound to record satisfaction in the
assessment order as regards the contravention of the provisions of
Section 269SS, 269ST or 269T of the said Act as the case may be
for initiation of proceeding under Section 271D, 271DA and 271E
of the said Act as the case may be. Records would reveal that
assessment orders under Section 143(3) read with Section 153A or
153C of the said Act as the case may be all dated 31 st March,
2022, in respect of the respective assessment years as noted above,
was passed in the petitioner's case. Following the aforesaid, the
show-cause notices as aforesaid had been issued under the
provisions of Section 271D, 271DA and 271E of the said Act, on
account of contravention of the provisions of Sections 269SS,
269ST and 269T of the said Act respectively.
4. Immediately upon receipt of such show-cause notices, the
petitioner by response in writing had called upon the department
to disclose the certified copy of the order-sheet recording the
reasons/satisfaction of the Assessing Officer, which promoted
issuance of show-cause notice. Records would reveal that the
department by a written response had, inter alia, held out that all
penalty proceedings initiated against the assessee had been carried
out through ITBA system of the department, which is also visible to
the assessee.
8
5. Records would reveal that the petitioner had contradicted the same
by a written communication enclosing therein screen shots from
the portal to demonstrate that no order or satisfaction had been
uploaded on the portal.
6. It is the petitioner's case that the department without adhering to
the petitioner's request to disclose the satisfaction note had
proceeded to pass the order under Sections 271D, 271DA and
271E of the said Act in respect of the relevant assessment years as
noted above.
7. The learned advocates appearing in support of the writ petitions
has drawn attention of this court not only to the show-cause
notices but also to the response filed by the petitioner thereto, to
highlight the fact that the recording of satisfaction contrary to the
claim made by the respondents, was not available on the portal. He
would submit that by a CBDT Circular No.09/DV/2016 dated 26 th
April, 2016, a clarification has been provided not only with regard
to the departmental view as regards initiation of penalty proceeding
but to bring an uniformity and to remove conflict in the procedure
to be followed by the Assessing Officers below the rank of Joint
Commissioner of Income Tax, while making a reference to the
Range Head regarding any violation of provisions of Section 269SS,
269ST and 269T of the said Act, as the case may be, in course of
the assessment proceeding or any other proceeding under the said
Act.
9
8. According to him, in absence of the satisfaction being recorded by
the Assessing Officer regarding contravention of Section 269SS,
269ST and 269T of the said Act for initiation of penalty
proceedings under the provisions of sections 271D, 271DA and
271E of the said Act, independent penalty proceeding, independent
of such satisfaction could be initiated. In support of his aforesaid
contention that in absence of satisfaction regarding contravention
of the provisions of Section 269SS, 269ST and 269ST of the said
Act, by the Assessing Officer, no penalty proceeding can be
initiated under sections 271D, 271DA and 271E of the said Act
and no penalty could be levied, he has placed reliance on the
judgment delivered by the Hon’ble Supreme Court in the case of
Commissioner of Income Tax, Panchkula vs. Jai Laxmi Rice
Mills Ambala City reported in (2015) 64 taxman.com 75 (SC).
He has also placed reliance on the judgment delivered by the
Hon’ble High Court at Andhra Pradesh in the case of Grandhi Sri
Venkata Amarendra vs. Joint Commissioner of Income Tax
reported in (2024) 167 taxman.com 352 (Andhra Pradesh).
9. On the question whether this Hon’ble Court is competent to
entertain the writ petitions, notwithstanding there being an
alternative remedy in the form of an appeal he has placed reliance
on a judgment delivered in the case of Whirlpool Corporation vs.
Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC
page 1 and the judgment delivered by the Hon’ble Supreme Court
10
in the case of Godrej Sara Lee Ltd. vs. Excise of Taxation
Officer-cum-Assessing Authority And Others reported in (2023)
109 GSTR 402 : 2023 SCC Online SC 95. In the facts of the case
noted hereinabove, he would submit that the order impugned as
also the penalty proceedings cannot be sustained and the same be
quashed.
10. Per contra, learned Additional Solicitor General representing
the respondents, at the very outset, would submit that the
petitioner has an alternative efficacious remedy in the form of an
appeal from the orders passed in the penalty proceeding under
Sections 271D, 271DA and 271E of the said Act, before the
appellate authority in terms of the provisions contained in 246A of
the said Act. He would submit that ordinarily when an efficacious
alternative remedy is available, a Court exercising writ jurisdiction
under Article 226 of the Constitution of India should not entertain
the same. It is still further argued that it is not the case of the
petitioner that the respondents did not have the jurisdiction to
initiate the penalty proceedings. Once, the Court comes to a
conclusion that the order passed by the authority is within the
scope of its adjudication, ordinarily in such circumstances, in the
event there is an alternative remedy available challenge, by way of
invoking the extraordinary remedy is not permissible. Further
according to the learned Additional Solicitor General, since, the
matter would require examination of the assessment order in the
11
form of evidence, this Court should not entertain the writ petitions.
In support of his aforesaid contention, he has placed reliance on
the Constitutional Bench judgment delivered by the Hon’ble
Supreme Court in the case of Thansingh Nathmal vs.
Superintendent of Taxes, Dhubri & Ors. reported in AIR 1964
SC 1419, the judgment delivered in the case of Commissioner of
Income Tax vs. Chhabil Dass Agarwal reported in (2013) 36
taxman.com 36 (SC) taxman and the judgment delivered in the
case of Whirlpool Corporation (supra). Independent of the
aforesaid, by placing reliance on the circular issued by the CBDT
(supra), he would submit that paragraph 4 of the aforesaid circular
clarifies the position, that the advisory is not confined to the
assessment proceeding but is also in respect of other proceeding
under the said Act. According to him, the assessment proceeding
under the said Act are distinct and different from the penalty
proceeding and independent of the assessment proceeding a
penalty proceeding cannot be initiated. As such in ordinary course
there is no requirement for recording satisfaction by the Assessing
Officer as regards contravention of the provisions of Sections
269SS, 269ST and 269T of the said Act for initiating proceedings
under Sections 271D, 271DA and 271E of the said Act. In the facts
noted hereinabove, it is submitted that no special case has been
made out by the petitioner for invoking the extraordinary writ
jurisdiction of this Court. In addition to the above, it is submitted
that the point raised by the petitioner does not constitute a
12
jurisdictional issue for this Court to entertain the same and in any
event, if the Hon’ble Court by overruling the objection raised by the
respondents admits the writ petitions, the petitioner should be put
to terms especially having regard to the fact that the petitioner had
not cooperated with the department in the penalty proceedings and
had not offered any explanation on merits. On the issue of
satisfaction of the Assessing Officer as regards the contravention of
Sections 269SS, 269ST and 269T of the said Act, he would submit
that even if such satisfaction is not explicit on the face of the
records, it is always open for the Hon’ble Court to scrutinise the
records and ascertain whether there was any basis for issuing the
direction since, the satisfaction can be both subjective and
objective.
11. Heard the learned advocates appearing for the respective
parties and considered the materials on record including the
supplementary affidavits. From the argument advanced by the
advocates representing the respective parties, it would transpire
that the primary issue that falls for consideration in the present
series of writ petitions is whether the department was competent to
initiate the penalty proceedings under Sections 271D, 271DA and
271E of the said Act, without there being a satisfaction of the
Assessing Officer as regards the contravention of the provision of
Sections 269SS, 269ST and 269T of the said Act. However, before a
proceeding to adjudicate the above issue, having regard to the
13
objection raised by the respondents with respect to the
maintainability of the writ petitions, I am of the view, such issue
should be considered first.
12. I find that it is the respondents’ contention that having
regard to the statutory remedy in the form of an appeal available to
the petitioner, this Court should not exercise the jurisdiction.
There is no dispute that the petitioner has an alternative remedy in
the form of an appeal from the order impugned. It is equally true
that the petitioner had raised the jurisdictional issue as regard the
competence of the department to initiate a penalty proceeding
under Sections 271D, 271DA and 271E of the said Act. I find that
the learned Additional Solicitor General by placing reliance on the
judgment delivered in the case of Thansingh Nathmal (supra) has
tried to impress upon this Court that when an alternative remedy
in the form of a statutory appeal is available ordinarily this Court
should not entertain the present set of writ petitions. I am of the
view, that there cannot be any doubt that an alternative remedy
would stand in the way of a Writ Court exercising its jurisdiction
unless the petitioner is in a position to demonstrate that either the
alternative remedy is inefficacious or the petitioner comes within
the exception, as enumerated in the judgment delivered in the case
of Whilpool Corporation (supra). I find that the Hon’ble Supreme
Court in the case of Thansingh Nathmal (supra) had refused to
entertain the writ petitions not merely on the ground that an
14
alternative remedy was available but on the ground that the
question of facts which were raised before the Hon’ble Supreme
Court were not canvassed before the appropriate taxing authority.
In fact as highlighted in paragraph 8 of such judgment the
assessee in such case had attempted to reopen the decision of the
taxing authorities on the question of fact, by invoking the
jurisdiction under Article 226, which jurisdiction by the statute
constituting them is exclusively vested in the taxing authorities.
The above judgment thus, does not assist the respondents. The
learned Additional Solicitor General next relied on a judgment
delivered in the case of Chhabil Dass Agarwal (supra) where in
the matter dealt with a challenge to a notice issued under section
148 of the said Act under the old regime that is prior to
introduction of the Finance Act, 2021 with effect from 1 st April
2021. Following the aforesaid an assessment order was passed,
aggrieved the assessee without exhausting the statutory remedy
had approached the writ Court. In the said case the Hon’ble
Supreme Court had held that a complete machinery for the
assessment/reassessment of tax, imposition of penalty had been
provided in the statute and having regard thereto the Hon’ble
Court has refused to entertain the writ petition. In my view,
challenge to an assessment order ordinarily would require detailed
enquiry on facts. Such is not the case here. The above judgment
does not assist the respondents as well.
15
13. In so far as the judgment delivered in the case of Whirlpool
Corporation (supra) is concerned, the Hon’ble Supreme Court in
paragraph 15 of such judgment has been inter alia pleased to
observe as follows:
“15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself restrictions
one of which is that if an effective and efficacious
remedy is available, the High Court would not normally
exercise its jurisdiction. But the alternative remedy has
been consistently held by this Court not to operate as a
bar in at least three contingencies, namely, where the
writ petition has been filed for the enforcement of any of
the Fundamental Rights or where there has been a
violation of the principle of natural justice or where the
order or proceedings are wholly without jurisdiction or
the vires of an Act is challenged. There is a plethora of
case -law on this point but to cut down this circle or
forensic whirlpool, we would rely on some old decisions
of the evolutionary era of the Constitutional law as they
still hold the field”
14. From the above it will be aptly clear that in case the
jurisdictional issue is raised the Court ordinarily does not refuse
but accept the challenge to the same. Before proceeding further I
must note that the Hon’ble Supreme Court in the recent judgment
delivered in the case of Godrej Sara Lee Ltd. (Supra) in paragraph 8
has observed as follows:
16
“8. That apart, we may also usefully refer to the
decisions of this Court reported in (1977) 2 SCC 724
(State of U. P. v. Indian Hume Pipe Co. Ltd.)** and (2000)
10 SCC 482 (Union of India v. State of Haryana). What
appears on a plain reading of the former decision is that
whether a certain item falls within an entry in a sales
tax statute, raises a pure question of law and if
investigation into facts is unnecessary, the High Court
could entertain a writ petition in its discretion even
though the alternative remedy was not availed of ; and,
unless exercise of discretion is shown to be
unreasonable or perverse, this Court would not interfere.
In the latter decision, this court found the issue raised
by the appellant to be pristinely legal requiring
determination by the High Court without putting the
appellant through the mill of statutory appeals in the
hierarchy. What follows from the said decision is that
where the controversy is a purely legal one and it does
not
*(2021) 93 GSTR 1 (SC)
** (1977) 39 STC 355 (SC).
involve dispute question of fact but only questions of law
then it should be decided by the High Court instead of
dismissing the writ petition on the ground of an
alternative remedy being available.”
15. From the nature of challenge presented by the petitioner in
the present set of petitions it does not appear that there is any
scope to embark on any enquiry on any disputed question of fact
or to consider any evidence. The controversy at hand is a purely
legal one. The question as to whether the satisfaction of the
17
Assessing Officer is necessary as regards contravention of Sections
269SS, 269ST and 269T of the said Act, for initiating a penalty
proceeding noted above would not require any detailed enquiry
since there is no dispute at least on the basis of materials on
record that there is no satisfaction recorded in the assessment
order with regard to the violation of the provisions of section
269SS, 269ST and 269T of the said Act. Thus, by overruling the
objection as to maintainability of the above petitions, I proceed to
decide on the primary question of law raised in the above petitions.
16. I find that Mr. Mookherjee by placing reliance on the
judgment delivered by the Hon’ble Supreme Court in the case of
Jai Laxmi Rice Mills (supra) has submitted that without the
satisfaction of the Assessing Officer being recorded regarding the
contravention of Sections 269SS, 269ST and 269T of the said Act,
no penalty proceeding can be initiated. In this context it would be
relevant to extract the observation made by the Hon’ble Supreme
Court in paragraphs 2 to 5 of the above judgment.
“2. The assessee carried out this order in appeal. The
Commissioner of Income Tax (Appeals) allowed the
appeal and set aside the assessment order with a
direction to frame the assessment de novo after
affording adequate opportunity ot the assessee.
3. After remand, the Assessing Officer passed fresh
assessment order. In this assessment order, however,
no satisfaction regarding initiation of penalty
proceedings under Section 271E of the Act was
18recorded. It so happened that on the basis of the
original assessment order dated 26.02.1996, show
cause notice was given to the assessee and it resulted
in passing the penalty order dated 23.09.1996. Thus,
this penalty order was passed before the appeal of the
assessee against the original assessment order was
heard and allowed thereby setting aside the
assessment order itself. It is in the backdrop, a
question has arisen as to whether the penalty order,
which was passed on the basis of original assessment
order and when that assessment order had been set
aside, could still survive.
4. The Tribunal as well as the High Court has held that
it could not be so for the simple reason that when the
original assessment order itself was set aside, the
satisfaction recorded therein for the purpose of
initiation of the penalty proceeding under section 271E
would also not survive. This according to us is the
correct proposition of law stated by the High Court in
the impugned order.
5. As pointed out above, insofar as, fresh assessment
order is concerned, there was no satisfaction recorded
regarding penalty proceeding under Section 271E of
the Act, though in that order the Assessing Officer
wanted penalty proceeding to be initiated under
Section 271(1)(c) of the Act. Thus, insofar as penalty
under Section 271E is concerned, it was without any
satisfaction and, therefore, no such penalty could be
levied. These appeals are, accordingly, dismissed.”
17. I find that the aforesaid issue has also been considered by
the Hon’ble High Court of Andhra Pradesh in the case of Grandhi
19
Sri Venkata Amarendra (supra) wherein the Hon’ble High Court
of Andhra Pradesh has in paragraphs 8 and 9 pleased to observe
as follows:-
“8. We have gone through the material placed on
record. The Assessing Officer, except to base his
addition on the letter of the assessee dated 02-06-
2014, did not record any finding that there has been
any violation of the provisions of Sec.269SS of the Act
by the assessee, nor was any satisfaction recorded to
the effect that the alleged transaction of acceptance of
loan would attract penal consequences. In the absence
of any finding to the said effect, in our considered
view, the penalty cannot be levied. A presumption can
be drawn, in the absence of a finding by the Assessing
Officer to the effect that the petitioner has violated the
provisions of Sec.269SS of the Act, that the department
has accepted the explanaction furnished by the
petitioner denying allegation of loan in cash. Therefore,
it can unhesistently be said that, having satisfied with
the explanation of the assessee, the Assessing Officer
did not record any satisfaction in the assessment order
to the effect that the provisions of Section 269SS of the
Act, are violated and did not contemplate levy of
penalty under Sec.271D of the Act.
9. In our view, the satisfaction of the Assessing Officer
is required to be recorded because the officer, who
passed the assessment order would not be levying the
penalty under Sec.271D of the Act, unless it is record
in the assessment order, he cannot refer the file to
superior officer i.e. Joint Commissioner, for initiating
levy of penalty. Unless the Assessing Officer, who is
the primary authority, based on the material before it,
20during assessment proceedings, arrives at a finding
that there has been a violation of the provisions, like in
the present case, of Section 269SS, there will not be
any occasion to the Joint Commissioner, who is not the
Assessing Officer, to exercise his jurisdiction to levy
Penalty under Section 271D. Following the decision of
the Hon’ble Supreme Court in the case of Jai Laxmi
Rice Mills referred supra, we set aside the order
passed under Sec.271D of the Act.”
18. Having regard thereto, and in absence of the assessment
orders recording the satisfaction of contravention of provisions of
Section 269SS, 269ST and 269T of the said Act, consequential
penalty proceedings may be a nonstarter and could not have been
proceeded with. However, since the respondents insist on
producing the records, the respondents shall be at liberty to
produce the records. Alternatively, the respondents are also at
liberty to file affidavit-in-opposition to the aforesaid writ petitions
so to disclose any additional material regarding satisfaction of the
assessing officer within a period of two weeks. Reply thereto, if any,
be filed on or before the matter is taken up next. Pending hearing
of these petitions, there shall be stay of the orders impugned in the
above writ petitions till the end of August, 2025 or until further
order whichever is earlier. List these writ petitions in the monthly
list of July, 2025.
(RAJA BASU CHOWDHURY, J.)
R. Bose