Patna High Court – Orders
Vandana Kumari @ Bandana Kumari vs Principal Commissioner Of Income … on 6 August, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ajit Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2317 of 2025
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Vandana Kumari @ Bandana Kumari, W/o Shri Laxmi Kumar, Kashipur,
R.N.A.R. College Road Near BED College Kashipur, P.O., P.S. and District-
Samastipur- 848101 (Bihar).
... ... Petitioner
Versus
1. Principal Commissioner of Income Tax-1, Patna.
2. Income Tax Officer, Ward-3 (3), Samastipur.
3. Assessment Unit, National Faceless Assessment Centre, Delhi.
... ... Respondents
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Appearance :
For the Petitioner : Mr. Ajay Kumar Jha, Advocate
Mr. Sanjeev Kumar, Advocate
Mr. Aman Raja, Advocate
For the Respondents : Ms. Archana Sinha @ Archana Shahi, Senior SC
Mr. Alok Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE AJIT KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
5 06-08-2025
Heard learned counsel for the petitioner and learned
Senior Standing Counsel for the Department of Income Tax.
2. The petitioner in this case is aggrieved by and
dissatisfied with the order issuing notice to the petitioner under
Section 148 of the Income Tax Act, 1961 (hereinafter referred to
as the ‘Act of 1961’). The reliefs prayed in the writ application
are being reproduced hereunder:-
“(a) For issuance of appropriate
writ/direction(s) to prevent the
respondents from exceeding its
jurisdiction and/or acting contrary to the
rule of natural justice, where the defect
Patna High Court CWJC No.2317 of 2025(5) dt.06-08-2025
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the proceedings and/or there is an abuse
of power.
b. For issuance of writ of Certiorari or
any other appropriate writ(s), order(s) or
direction(s) quashing the notice issued
by the Respondent No. 2 under the
section 148 of Income-tax Act, 1961
(here-in-after called “the Act”) dated
28/03/2021 as the notice issued by the
Respondent No. 2 is wholly illegal and
without jurisdiction in as much as the
same has been issued beyond the period
of limitation prescribed under the
section 149 of the Act.
c. For issuance of writ of Certiorari or
any other appropriate writ(s), order(s) or
direction(s) quashing the notice issued
by the Respondent No. 2 under the
section 148 of the Act dated 28/03/2021
as the sanction required to be accorded
before the issuance of the notice under
section 151 of the Act is conspicuously
absent.
d. For issuing the appropriate order,
direction or writ in the nature of
Certiorari for quashing the Order of
Assessment and consequential notice of
demand under the section 156 of the Act
as the completion of the proceedings
under section 147 read with section 144
read with section 144B of the Act in the
absence of the mandatory statutory
notice under section 143(2) of the Act is
illegal and beyond the jurisdiction of
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Respondent No. 3.
e. For issuing the appropriate order,
direction or writ in the nature of
Certiorari for quashing the Order of
Assessment and consequential notice of
demand under the section 156 of the Act
as the passing of the order under 144
instead of 143(3) or the Act is bad in
law in as much as the impugned order is
beyond the purview of the conditions
stipulated under section 144 of the Act.
f. For issuing the appropriate order,
direction or writ in the nature of
Certiorari for quashing the Order of
Penalty passed under section 271F dated
15/09/2022 as the order of assessment in
itself is passed after erroneous
assumption of jurisdiction by the Ld.
Assessing Officer.
g. For issuing the appropriate order,
direction or writ in the nature of
Certiorari for quashing the Order of
Penalty passed under section 271B
dated 23/09/2022 as the order of
assessment in itself is passed after
erroneous assumption of jurisdiction by
the Ld. Assessing Officer.
h. For issuing the appropriate order,
direction or writ in the nature of
Certiorari for quashing the Order of
Penalty passed under section 271(1)(c)
dated 23/09/2022 as the order of
assessment in itself is passed after
erroneous assumption of jurisdiction by
the Ld. Assessing Officer.
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i. For issuance of other writ/direction(s)
while the petitioner may in the fact and
circumstances of the case to be found
entitled to.
j. For grant such other relief(s) as deem
fit and proper by issuing an appropriate
writ(s), rule(s) or direction(s) as deem
fit and proper.”
3. It is the case of the petitioner that the return of the
petitioner for the assessment year 2013-14 was selected for
scrutiny. A notice under Section 148 of the Act of 1961 was
issued on 28.03.2021 and the case of the petitioner was
reopened on the basis of the reason that as per the information
available on the system of the Department, the petitioner had
deposited cash of Rs.2,88,85,705/- in her savings bank account
during the relevant year.
4. It is stated that subsequent to the notice under
Section 148, a notice under sub-section (1) of Section 142 of the
Act of 1961 was issued of 30.06.2021 by Respondent No. 2
seeking some information pertaining to the income of the
petitioner for the relevant year along with the evidences. It is the
submission of learned counsel for the petitioner that there had
been some delay in accessing the e-mail, therefore, the
petitioner could not respond to the notices issued by the
Department but as soon as the petitioner came to know about
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the initiation of the reassessment proceeding, she immediately
filed the due replies. The petitioner filed her return of income
for the relevant year on 28.08.2021 vide acknowledgment as
contained in Annexure ‘P/3’ to the writ petition.
5. It is further case of the petitioner that a further
notice under Section 142(1) of the Act of 1961 was issued on
31.08.2021 seeking compliance of the previous notice issued
under sub-section (1) of Section 142 but since the petitioner did
not respond to the said notice, it was followed by another notice
dated 04.02.2022. It is the specific case of the petitioner that the
notices issued subsequently which are Annexures ‘P/4’ and ‘P/5’
respectively called for filing of the return under Section 148 of
the Act despite the fact that the return of the income in response
to the notice under Section 148 of the Act of 1961 had already
been filed on 28.08.2021.
6. This writ application was earlier opposed by
learned Senior Standing Counsel for the Department.
7. After hearing learned counsel for the petitioner and
learned Senior Standing Counsel for the Department on
30.07.2025, this Court passed the following order:-
“Heard learned counsel for the
petitioner and learned Senior Standing
Counsel for the Department of Income
Tax.
2. The petitioner is aggrieved by and
Patna High Court CWJC No.2317 of 2025(5) dt.06-08-2025
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assessment as contained in the
Annexure ‘P/11’ to the writ application.
It has been assailed on the ground that
the impugned order suffers from
jurisdictional error.
3. Learned counsel for the petitioner
submits that in paragraphs ‘3’ and ‘5’ of
the impugned order, the Assessing
Officer has recorded that “in response
to the notice under Section 148 of the
Income Tax Act, 1961 (hereinafter
referred to as the ‘Act of 1961’), the
assessee has not filed her return of
income for the assessment year 2013-
14″ but this is not a correct fact.
4. It is submitted that the notice under
Section 148(1) of the Act of 1961 was
issued on 28.03.2021 requiring the
petitioner to file her return within a
period of 30 days. The petitioner did
not file her return within the period of
30 days but well before the passing of
the assessment order, the petitioner had
already filed her return on 28.08.2021,
therefore, it would be taken as a return
under Section 139(4) of the Act of
1961.
5. It is submitted that in such
circumstance, a notice under sub-
section (2) of Section 143 of the Act of
1961 would be mandatory. If no such
notice has been issued, the Assessing
Officer cannot assume jurisdiction. In
his submission, it would be a case of
lack of inherent jurisdiction on the part
of the Assessing Officer.
6. Learned counsel has relied upon the
judgments of this Court in the case of
Chand Bihari Agrawal Vs.
Commissioner of Income Tax,
Central and Another in
Miscellaneous Appeal No. 239 of 2011
which has been relied upon by this
Court in the case of Commissioner of
Patna High Court CWJC No.2317 of 2025(5) dt.06-08-2025
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Nagendra Prasad in Miscellaneous
Appeal No. 662 of 2014. The basic
judgment on which Chand Bihari
Agrawal (supra) and Nagendra
Prasad (supra) have formed its opinion
is the judgment of the Hon’ble
Supreme Court in the case of Assistant
Commissioner of Income-Tax Vs.
Hotel Blue Moon reported in (2010)
321 ITR 362 (SC). Learned counsel
has also relied upon a Division Bench
judgment of the Hon’ble Delhi High
Court in the case of Shaily Juneja Vs.
Assistant Commissioner of Income
Tax Circle 34-1 and Another reported
in 2024 DHC 6774-DB. On these
grounds, prayer has been made to set
aside the impugned order.
7. On the other hand, Ms. Archana
Sinha, learned Senior Standing Counsel
for the Department submits that the
Hotel Blue Moon judgment came in
the year 2010 which was prior to
insertion of the proviso to sub-section
(2) of Section 143 of the Act of 1961. It
is submitted that on a reading of the
proviso to sub-section (2) of Section
148 of the Act of 1961, it would appear
that any return of income required
under sub-section (1) furnished after
the expiry of the period specified in the
notice under said sub-section shall not
deem to be a return under Section 139
of the Act of 1961.
8. Learned counsel for the petitioner
has, however, contested this submission
of learned Senior Standing Counsel for
the Department as according to him,
proviso to sub-section (2) of Section
148 was inserted only vide the Finance
Act 2023 with effect from 01.04.2023
whereas the present matter pertains to
the year 2020-2021 as the notice was
issued only on 28.03.2021.
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9. At this stage, learned Senior
Standing Counsel for the Department
prays for a short adjournment to enable
her to get clarity on the issues with
regard to the proviso to sub-section (2)
of Section 143 as well as proviso to
sub-section (2) of Section 148 of the
Act of 1961.
10. Let this matter be listed on
05.08.2025 under the same heading.”
8. Today, when the writ application has been taken up
for consideration, learned Senior Standing Counsel for the
Department has placed before us the proviso to sub-section 2 of
Section 143 which was existing in the statute book during the
relevant year. We reproduce sub-section (2) of Section 143 with
proviso herein for a ready reference:-
“(2) Where a return has been furnished under
section 139, or in response to a notice under
sub-section (1) of section 142, the Assessing
Officer or the prescribed income-tax authority,
as the case may be, if, considers it necessary
or expedient to ensure that the assessee has not
understated the income or has not computed
excessive loss or has not under-paid the tax in
any manner, shall serve on the assessee a
notice requiring him, on a date to be specified
therein, either to attend the office of the
Assessing Officer or to produce, or cause to be
produced before the Assessing Officer any
evidence on which the assessee may rely in
support of the return:
Provided that no notice under this sub-section
shall be served on the assessee after the expiry
of six months from the end of the financial
year in which the return is furnished.”
9. Learned Senior Standing Counsel has fairly
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submitted before this Court that in this case, the proviso to sub-
section (2) of Section 143 would not be applicable. The
petitioner had already submitted her return on 28.08.2021 i.e.
within five months from the date of issuance of notice under
Section 148 (Annexure ‘P/1’ to the writ application), in such
circumstance, a notice under sub-section (2) of Section 143 of
the Act of 1961 was mandatory. It is submitted that admittedly
in this case, no notice under sub-section (2) of Section 143 of
the Act of 1961 has ever been issued much less served upon the
petitioner.
10. In its order dated 30.07.2025, this Court has taken
note of the judicial pronouncements on the subject. The stand
taken today on behalf of the Department would lead to conclude
that the ratio of the judgment of the Hon’ble Supreme Court in
the case of Assistant Commissioner of Income-Tax Vs. Hotel
Blue Moon reported in (2010) 321 ITR 362 (SC) would be
fully applicable in this case.
11. In result, we are of the opinion that the impugned
orders are liable to be set aside for non-observance of the
mandatory provision of sub-section (2) of Section 143 of the Act
of 1961. Since the writ application succeeds on this solitary
ground, this Court need not go into the other contentions raised
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on behalf of the petitioner.
12. The impugned orders are set aside. The writ
application is allowed.
13. There will, however, be no cost.
(Rajeev Ranjan Prasad, J)
(Ajit Kumar, J)
lekhi/-
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