An assessment order can be challenged through a writ petition on jurisdictional grounds even if an appeal has been filed, especially where the order is invalid due to procedural changes.

JUDGMENT

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 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 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 by the petitioner. [See Kiran Singh vs. Chaman Paswan, (1955) 1 SCR 117, ¹ ]

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 that an appeal was filed, albeit