TaxTMI 
TaxTMI 
2022 (4) TMI 44
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..../2021, (958) WP/3316/2021, (959) WP/3489/2021, (960) WP/3537/2021, (961) WP/3749/ 2021, (962) WP/3762/2021, (963) WP/3934/2021, (964) WP/ 3936/ 2021, (965) WP/3939/2021, (966) WP/3940/2021, (967) WP/ 3943/2021 (968) WP/3965/2021, (969) WP/3172/2021, (970) WP/3678/2021, (971) WP/3566/2021, (972) WP/3584/ 2021, (973) WP/3567/2021, (974) WP/3565/2021, (975) WP/ 3575/2021, (976) WP(L.)/25606/2021, (977) WP(L.)/30142/ 2021, (978) WP(L.)/30201/2021, (979) WP(L.)/31306/2021, (980) WP(L.)/31332/2021, (981) WP(L.)/31339/2021, (982) WP (L.)/31350/2021, (984) WP(L.)/31364/2021, (985) WP(L.)/ 31442/2021, (986) WP (L.)/31645/2021, (987) WP(L.)/31647/ 2021, (988) WP(L.)/31648/2021, (989) WP(L.)/31669/2021, (990) WP(L.)/31677/2021, (991) WP (L.)/31769/2021, (992) WP(L.)/31775/2021, (993) WP(L.)/31810/2021, (994) WP(L.)/ 31826/2021, (995) WP(L.)/31841/ 2021, (996) WP/6/2022, (997) WP/7/2022, (998) WP/12/2022, (999) WP/18/2022, (1000) WP/20/2022, (1001) WP/21/2022 WITH WP/728/2022, WITH WP(L.)/4111/2022 WITH WP/174/ 2022, WITH WP/250/ 2022, WITH WP/14/2022, (1002) WP/22/ 2022, (1003) WP/24/ 2022, (1004) WP/29/2022, (1005) WP/42/ 2022, (1006) WP(L.)/ 43/2022, (1007) WP/ 44/2022, (1008) WP/48/2022, (....
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....1126) WP/473/2022, (1127) WP/ 479/ 2022, (1128) WP/481/ 2022, (1129) WP/484/2022, (1130) WP/488/2022, (1131) WP/489/2022, (1132) WP/494/ 2022, (1133) WP/496/2022, (1134) WP/497/2022, (1135) WP/498/ 2022, (1136) WP/499/ 2022, (1137) WP(L.)/502/2022 WITH WP/646/2022, (1138) WP/505/2022, (1139) WP/507/ 2022, (1140) WP/509/2022, (1141) WP/512/2022, (1142) WP/515/ 2022, (1143) WP/518/ 2022, (1144) WP/519/2022, (1145) WP/ 521/2022, (1146) WP/523/2022, (1147) WP/527/2022, (1148) WP/530/2022, (1149) WP/531/2022, (1150) WP/536/2022, (1151) WP/537/ 2022, (1152) WP/538/2022, (1153) WP/539/ 2022, (1154) WP/541/2022, (1155) WP/547/2022, (1156) WP/ 548/2022, (1157) WP/549/2022, (1158) WP/552/2022, (1159) WP/556/2022, (1160) WP/559/2022, (1161) WP/560/2022, (1162) WP/564/2022, (1163) WP/567/2022, (1164) WP/568/ 2022, (1165) WP/569/2022, (1166) WP/570/2022, (1167) WP/ 574/2022, (1168) WP/575/2022, WITH WP/558/2022 WITH WP/563/2022, (1169) WP/577/2022, (1170) WP/579/2022, (1171) WP/581/2022, (1172) WP/582/2022, (1173) WP/590/ 2022, (1174) WP/591/2022 WITH WP/595/2022 WITH WP/628/ 2022 (1175) WP/607/2022, (1176) WP/608/2022, (1177) WP/ 616/2022, (1178) WP/619/2022, (1179) WP/622/ 2022, (1180) WP/626....
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....2022, (1294) WP(L.)/2410/2022, (1295) WP/1003/2022, (1296) WP(L.)/2434/2022, (1297) WP/1057/ 2022, (1298) WP/ 997/2022, (1299) WP/1048/2022, (1300) WP/1049/2022, (1301) WP(L.)/2526/2022, (1302) WP(L.)/2527/ 2022, (1303) WP(L.)/ 2530/2022, (1304) WP/1033/2022, (1305) WP/921/2022, (1306) WP/1035/2022, (1307) WP(L.)/2595/2022, (1308) WP(L.)/ 2597/2022, (1309) WP(L.)/2621/2022, (1310) WP/922/ 2022, (1311) WP(L.)/2671/2022, (1312) WP(L.)/2811/2022, (1313) WP(L.)/3057/2022, (1314) WP(L.)/3092/2022, (1315) WP(L.)/3143/2022, (1316) WP(L.)/3151/2022, (1317) WP/845/ 2022, (1318) WP(L.)/3182/2022, (1319) WP(L.)/3221/2022, (1320) WP(L.)/3234/2022, (1321) WP(L.)/3235/2022, (1322) WP(L.)/ 3255/2022, (1323) WP(L.)/3279/2022, (1324) WP(L.)/33 22/2022, (1325) WP(L.)/3326/2022, (1326) WP(L.)/3365/2022, (1327) WP(L.)/3410/2022, (1328) WP(L.)/ 3411/2022, (1329) WP(L.)/3416/2022, (1330) WP(L.)/3418/ 2022, (1331) WP(L.)/ 3424/2022, (1332) WP(L.)/3428/2022, (1333) WP(L.)/3486/ 2022, (1334) WP/901/2022, (1335) WP /899/2022, (1336) WP/ 904/2022, (1337) WP/968/2022, (1338) WP/1031/2022, (1339) WP(L.)/3804/2022, (1340) WP(L.)/3838/ 2022, (1341) WP(L.)/ 3843/2022, (1342) WP(L.)/3914/2022, (1343) WP(L.)/3917/ ....
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....1, (1451) WP/2208/2021, (1452) WP/2245/2021, (1453) WP/2251/2021, (1454) WP/2257/ 2021, (1455) WP/2307/2021, (1456) WP/2309/2021, (1457) WP/2317/2021, (1458) WP/2328/2021, (1459) WP/2332/2021, (1460) WP/2339/2021, (1461) WP/2380/2021, (1462) WP/2400/ 2021, (1463) WP/2402/2021, (1464) WP/2408/2021, (1465) WP/2416/2021, (1466) WP/2435/2021, (1467) WP/2438/2021, (1468) WP/2484/2021, (1469) WP/2485/2021, (1470) WP/2489/ 2021, (1471) WP/2493/2021, (1472) WP/2497/2021, (1473) WP/2499/2021, (1474) WP/2505/2021, (1475) WP/2507/2021, (1476) WP/2509/2021, (1477) WP/2510/2021, (1478) WP/2511/ 2021, (1479) WP/2516/2021, (1480) WP/2517/2021, (1481) WP/2520/2021, (1482) WP/2521/2021, (1483) WP/2527/2021, (1484) WP/2528/2021, (1485) WP/2530/2021, (1486) WP/2534/ 2021, (1487) WP/2536/2021, (1488) WP/2540/2021, (1489) WP/2541/2021, (1490) WP/2543/2021, (1491) WP/2548/2021, (1492) WP/2553/2021, (1493) WP/2557/2021, (1494) WP/2560/ 2021, (1495) WP/2570/2021, (1496) WP/2572/2021, (1497) WP/2573/2021, (1498) WP/2575/2021, (1499) WP/2576/2021, (1500) WP/2583/2021, (1501) WP/2587/2021, (1502) WP/2592/ 2021, (1504) WP/2604/2021, (1505) WP/2606/2021, (1506) WP/2608/2021, (1507) WP/2609/2021, (1508) WP/2612....
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....) WP/3724/2021, (1627) WP/278/2 022, (1628) WP/214/2022, (1629) WP/277/2022, (1630) WP/272/2022, (1631) WP/268/ 2022, (1632) WP/3382/2021, (1633) WP/3557/2021, (1634) WP/3425/2021, WITH WP/3461/ 2021, WITH WP/3465/2021, WITH WP/3457/2021, WITH WP/3454/2021, WITH WP/3458/ 2021, WITH WP/3103/2021, WITH WP/3144/2021, (1635) WP/3631/2021, (1636) WP/3431/ 2021, (1637) WP/3813/2021, (1638) WP/3551/2021, (1639) WP/3745/2021, (1640) WP/3046/ 2021, (1641) WP/3035/2021, (1642) WP/3621/2021, (1643) WP/3090/2021, (1644) WP/3651/ 2021, (1645) WP/3028/2021, (1646) WP/3637/2021, (1647) WP/3091/2021, (1648) WP/3030/ 2021, (1649) WP/3276/2021, (1650) WP/3158/2021, (1651) WP/3123/2021, (1652) WP/3195/ 2021, (1653) WP/3362/2021, WITH WP/3344/2021, (1654) WP/3405/2021, (1655) WP/3379/ 2021, (1656) WP/3392/2021, (1657) WP/3702/2021, (1658) WP/3386/2021, (1659) WP/3440/ 2021, (1660) WP(L.)/15815/ 2021, (1661) WP/3450/2021, (1662) WP (L.)/15837/2021, (1663) WP(L.)/15856/2021, (1664) WP/3646/2021, (1665) WP/ 3639/2021, (1666) WP/3268/2021, (1667) WP/587/2022, (1668) WP/3872/2021, (1669) WP/3871/ 2021, (1670) WP/3435/2021, (1671) WP/3171/2021, (1672) WP/3442/2021, (1673) WP/3505/ 2021, (1674) WP/3451/2021,....
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....786) WP/3718/2021, (1787) WP/3445/2021, (1788) WP/3455/2021, (1789) WP/3391/2021, (1790) WP/3409/ 2021, (1791) WP/3390/2021, (1792) WP/614/2022, (1793) WP/3408/2021, (1794) WP/3203/2021, (1795) WP/3630/2021, (1796) WP/3807/2021, (1797) WP/3205/2021 WITH WP/3212/ 2021, WITH WP/3204/2021, WITH WP/3231/2021, WITH WP/3233/2021, (1798) WP/3177/2021, (1799) WP/3176/2021, (1800) WP/3184/2021, (1801) WP/3187/2021, (1802) WP/3178/ 2021, (1803) WP/3170/2021, (1804) WP/3180/2021, (1805) WP(L.)/17719/2021, (1806) WP/3446/2021, (1807) WP/3165/ 2021, (1808) WP/3098/2021, (1809) WP/3210/2021, (1810) WP/3122/2021, (1811) WP/3112/2021, (1812) WP/3113/2021, (1813) WP/3118/2021, (1814) WP/3150/2021, (1815) WP/3101/ 2021, (1816) WP/3159/2021, (1817) WP/3102/2021, (1818) WP/3104/2021, (1819) WP/3139/2021, (1820) WP/3116/2021, (1821) WP/3126/2021, (1822) WP/3108/2021, (1823) WP/3145/ 2021, (1824) WP/3422/2021, (1825) WP/3255/2021, (1826) WP/3424/2021, (1827) WP/3023/2021, (1828) WP/3267/2021, (1829) WP/3432/2021, (1830) WP/3787/2021, (1831) WP/3413/ 2021, (1832) WP/3022/2021, (1833) WP/3249/2021, (1834) WP/3430/2021, (1835) WP/3245/2021, (1836) WP/3449/2021, (1837) WP/3259/2021, (1838) WP/3427/2021, (18....
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....946) WP(L.)/28806/2021, (1947) WP(L.)/28838/2021, (1948) WP(L.)/28905/2021, (1949) WP(L.)/28908/2021, (1950) WP(L.)/28914/2021, (1951) WP(L.)/28917/2021, (1952) WP(L.)/ 29017/2021, (1953) WP/1030/2022, (1954) WP/1038/2022, (1955) WP/288/2022, (1956) WP/522/2022, (1957) WP/529/ 2022, (1958) WP/467/2022, (1959) WP(L.)/29939/2021, (1960) WP(L.)/30181/2021, (1961) WP/469/2022, (1962) WP/359/ 2022, (1963) WP/15/2022, (1964) WP/40/2022, (1965) WP/41/ 2022, (1966) WP/47/2022, (1967) WP/52/2022, (1968) WP/ 57/2022, (1969) WP/58/2022, (1970) WP/60/2022, (1971) WP(L.)/69/2022, (1972) WP/72/2022, (1973) WP/80/2022, (1974) WP/89/2022) WITH IPA(L.)/29847/2021) IN WP/89/ 2022, (1975) WP/106/2022, (1976) WP/111/2022, (1977) WP/ 125/2022, (1978) WP/130/2022, (1979) WP/166/2022, (1980) WP/170/2022, (1981) WP/194/2022, (1982) WP/202/ 2022, (1983) WP/247/2022, (1984) WP/255/2022, (1985) WP/326/2022, (1986) WP/339/2022, (1987) WP/344/2022, (1988) WP/352/2022, (1989) WP/354/2022, (1990) WP/355/ 2022, (1991) WP/357/2022, (1992) WP/392/2022, (1993) WP/397/2022, (1994) WP/441/2022, (1995) WP/447/2022, (1996) WP/675/2022, (1997) WP/474/2022, (1998) WP/475/ 2022, (1999) WP/665/2022, (2000) WP/682/2022, (200....
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....7/2022, (2107) WP(L.)/3241/2022, (2108) WP(L.)/3319/ 2022, (2109) WP(L.)/3330/2022, (2110) WP(L.)/3331/2022, (2111) WP(L.)/3332/2022, (2112) WP(L.)/3356/2022, (2113) WP(L.)/3364/2022, (2114) WP(L.)/3368/2022, (2115) WP(L.)/ 3405/2022, (2116) WP(L.)/3417/2022, (2117) WP(L.)/3435/ 2022, (2118) WP(L.)/3940/2022. WRIT PETITION NO. 2899 OF 2021 WITH WP/3750/2021 WITH WP/3751/2021 WITH WP/3479/2021 WITH WP/3480/2021 WITH WP/3481/2021 WITH WP/3482/ 2021 WP/3483/2021 WITH WP/3859/2021 WITH WP/3745/ 2021 WITH WP/3633/2021 WITH WP/3706/2021 WITH WP/ 3601/2021 WITH WP/3857/2021 WITH WP/3747/2021 WITH WP/3748/2021 WITH WP/3746/2021 WITH WP/4025/2021 WITH WP/4020/2021 WITH WP/3853/2021 WITH WP/4211/ 2021 WITH WP/4230/2021 WITH WP/4208/2021 WITH WP/ 4210/2021 WITH WP/4209/2021 WITH WP/4641/2021 WITH WP/4640/2021 WITH WP/5362/2021 WITH WP/5363/2021 WITH WP/4931/2021 WITH WP/5087/2021 WITH WP/4928/ 2021 WITH WP/4924/2021 WITH WP/5432/2021 WITH WP/ 5429/2021 WITH WP/7944/2021 WITH WP/7072/2021 WITH WP/7826/2021 WITH WP/9/2022 WITH WP/7928/2021 WITH WP/7925/2021 WP(ST.)/22383/2021 WITH WP/12/2022 WITH WP(ST.)/22706/2021 WITH WP(ST.)/22710/2021 WITH WP/11/ 2022 WITH (902) WP/3879/2021 WITH IA(ST)/....
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....22, (558) WP(L.)/4568/2022, (559) WP(L.)/ 4607/2022, (560) WP(L.)/4639/2022, (561) WP(L.)/4696/2022, (562) WP(L.)/4698/2022, (563) WP(L.)/4829/2022, (564) WP (L.)/4843/2022, (565) WP(L.)/4876/2022, (566) WP(L.)/4900/ 2022, (567) WP(L.)/4917/2022, (568) WP(L.)/4942/2022, (569) WP(L.)/4946/2022, (570) WP(L.)/4949/2022, (571) WP(L.)/ 4957/2022, (572) WP(L.)/4958/2022, (573) WP(L.)/4962/2022, (574) WP(L.)/4970/2022, (575) WP(L.)/4971/2022, (576) WP (L.)/4973/2022, (577) WP(L.)/4980/2022, (578) WP(L.)/5042/ 2022, (579) WP(L.)/5063/2022, (580) WP(L.)/5064/2022, (581) WP(L.)/5067/2022, (582) WP(L.)/5071/2022, (583) WP(L.)/ 5074/2022, (584) WP(L.)/5075/2022, (585) WP(L.)/5088/2022, (586) WP(L.)/5110/2022, (587) WP(L.)/5236/2022, (588) WP (L.)/5239/2022, (589) WP(L.)/5241/2022, (590) WP(L.)/5242/ 2022, (591) WP(L.)/5244/2022, (592) WP(L.)/5247/2022, (593) WP(L.)/5248/2022, (594) WP(L.)/5249/2022, (595) WP(L.)/ 5250/2022, (596) WP(L.)/5251/2022, (597) WP(L.)/5252/2022, (598) WP(L.)/5266/2022, (599) WP(L.)/5270/2022, (600) WP (L.)/5276/2022, (601) WP(L.)/5288/2022, (602) WP(L.)/5289/ 2022, (603) WP(L.)/5292/2022, (604) WP(L.)/5294/2022, (605) WP(L.)/5305/2022, (606) WP(L.)/5318/2022, (607) WP....
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....r. Rajesh Gupta, Mr. Rohan Deshpande, Ms. Farzeen Khambatta, Mr. Shreyas Shrivastava, Ms. Dishya Pandey, Mr. Vinod Santosh Kumar, Mr. Shanay Shah, Ms. Alefiyah S., Ms. Shreya Mohapatra, Mr. Karan Jain, Mr. Dhrumil Shah, Mr. Gopal Mundhra, Mr. Parth Parikh, Mr. Rahul Hakani, Dr. N. Shastri, Mr. Rajan Pillai, Ms. Priyanka Jain, Mr. Asadali Mazgaonwala, Mr. Kartikeya Desai, Ms. Sayli Shinde, Ms. Shobha H. Jagtiani, Mr. Gautam Thacker, Ms. Sneha Agicha, Ms. Anjali Jhawar, Mr. Zubin Behramkamdin, Mr. Yatin Malvankar, Mr. Dharan V. Gandhi, Mr. Durgaprasad Poojari, Mr. Jeet Gandhi, Mr. Shivam Dubey, Mr. Salil Kapoor, Mr. Jitendra Singh, Mr. Sumit Lalchandani, Ms. Ananya Kapoor, Ms. Soumya Singh, Mr. Sanat Kapoor, Ms. Pratibha Rupnawar, Mr. Kalpesh Turalkar, Ms. Samiksha Kanani, Mr. Mandar Vaidya, Mr. Manan Sanghai, Mr. Paarth Singh, Mr. Ranit Basu, Ms. Maitri Malde, Mr. Devendra Jain, Ms. Radha Halbe, Mr. Sanjeev M. Shah, Mr. Tanmay Phadke, Mr. Satish Mody, Ms. Aasifa Khan, Ms. Kavisha Shah, Mr. Nishit Gandhi, Ms. Akshita Bhandari, Mr. Ruturaj H. Gurjar, Mr. Prateek Jha, Mr. Muraleedharan, Mr. Atul K. Jasani, Mr. Sashi Tulsiyan, Mr. P.C. Tripathi, Mr. S.C. Tiwari, Ms. Rutuja N. Pawar, Ms.....
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....it Lohia, Mr. Varun Nathani, Mr. Dinesh Kukreja, Ms. Smita Thakur, Mr. Chaitanya Chavan, Mr. D.P. Singh, Ms. Mohinee Chougule, Ms. Krunali Satra and Mr. Arjun Gupta (Advocates) a/w. Mr. P.A. Narayanan, Ms. Mamta Omle, Ms. Swapna Gokhale, Mr. Pranil Sonawane, Mr. Vikas Khanchandani, Ms. P.S. Cardozo, Mr. Avadhesh Saxena and Mr. Vipul Bajapeyee (Junior Standing Counsel) for Respondents-Revenue in respective matters. JUDGMENT (PER K.R. SHRIRAM, J.) : WRIT PETITION NO.1334 OF 2021 1. This writ petition, along with other writ petitions listed today, have been filed by various assessees to challenge initiation of assessment proceedings under Section 148 of the Income Tax Act, 1961 (the Act) for different assessment years. All notices in these petitions for initiation of assessment proceedings have been issued after 1st April 2021. 2. Since substantial questions of law were involved, interim protection has been granted. Revenue has also filed reply in many petitions and many petitioners have also filed rejoinder. Since issues were identical, we did not insist on the Revenue filing a reply in each of the petitions. 3. The cause of action of dispute arising in all these writ ....
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....he Act, assess or reassess such income and also any other income chargeable to tax which had escaped assessment. As per Section 148 of the Act, before making such assessment or reassessment under Section 147 of the Act, the Assessing Officer had to serve a notice on the assessee requiring him to furnish the return of his income. Sub-section (2) of Section 148 provided that the Assessing Officer shall, before issuing any notice, record his reasons for doing so. 7. As per sub-section (1) of Section 149 read with Section 147 of the Act, if the assessment has been completed under Section 143(3) of the Act, no notice under Section 148 of the Act could be issued beyond a period of four years from the end of relevant assessment year unless the income chargeable to tax had escaped assessment for the reason of the failure on the part of the assessee to disclose truly and fully all material facts necessary for assessment and in any case, no such notice could be issued beyond a period of six years from the end of relevant assessment year. 8. Section 151 of the Act pertained to sanction for issuance of notice. Sub-section (1) of Section 151 of the Act provides that no such notice could b....
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.... prior approval of the specified authority for issuing such notice. What "information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment" means has been provided in Explanation (1) to Section 148 of the Act. Situations where the Assessing Officer shall be deemed to have information which suggests that the income chargeable to tax has escaped assessment is listed in Explanation (2) to Section 148 of the Act. 11. Section 148A is newly inserted and it pertains to conducting enquiry, providing opportunity before issue of notice under Section 148 of the Act and it reads as under:- "148A.-The Assessing Officer shall, before issuing any notice under section 148,- (a) conduct any enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment; (b) provide an opportunity of being heard to the assessee, with the prior approval of specified authority, by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty day....
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....f the specified authority with respect to the information which suggests that the income chargeable to tax has escaped assessment. The Assessing Officer has to provide an opportunity of being heard to the assessee by serving on him a notice to show cause within the specified time which shall not be less than seven days but not exceeding 30 days from the date of issue of notice but which can be extended by him on an application by the assessee. Such notice would be to call upon the assessee why a notice under Section 148 of the Act should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment. As per clause - (c), the Assessing Officer has to consider the reply of the assessee furnished, if any, in response to such notice. As per clause - (d), the Assessing Officer would decide on the basis of material available on record including the reply of the asssessee whether or not the case is fit for issuance of notice under Section 148 of the Act, for which purpose he would pass an order with the prior approval of the specified authority within one month from the end of the month in which the reply from the assessee is received by him ....
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....mmediately preceding proviso, the period of limitation available to the Assessing Officer for passing an order under clause (d) of section 148A is less than seven days, such remaining period shall be extended to seven days and the period of limitation under this subsection shall be deemed to be extended accordingly. Explanation.-For the purposes of clause (b) of this subsection, "asset" shall include immovable property, being land or building or both, shares and securities, loans and advances, deposits in bank account. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151." 14. As per sub-section (1) of Section 149 of the Act, as it stands now, time limit for issuing notice under Section 148 of the Act is three years from the end of relevant assessment year unless the case falls under clause - (b) where the period available for issuing such notice is ten years. Clause - (b) applies to cases where the Assessing Officer has in his possession books of accounts or other documents or evidence which reveal that the income chargeable to tax represented in the form of asset which has escaped assessment amounts....
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....ifies the procedure prescribed in the well known case of the Supreme Court in GKN Driveshafts (India) Ltd. V/s. Income Tax Officer (2003) 259 ITR 19 (SC). Clause - (a) of Section 148A of the Act permits the Assessing Officer to conduct enquiry, if required, with the prior approval of the specified authority with respect to the information which suggests that income chargeable to tax has escaped assessment. Clause - (b) of Section 148A of the Act requires the Assessing Officer to provide an opportunity of being heard to the assessee by issuing notice calling upon him why notice under Section 148 of the Act should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment. Clause - (c) requires the Assessing Officer to consider the reply of the assessee, if furnished. As per clause - (d), the Assessing Officer would decide on the basis of material available on record and if reply is furnished, whether it is a fit case for issuing notice under Section 148 of the Act. Thus, the assessee even has an opportunity to oppose even issuance of notice under Section 148 of the Act and he could legitimately expect the Assessing Officer to pro....
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....d extended, besides others, time limit for issuance of notice under Section 148 of the Act. The said notification reads as under: Notification No.20 of 2021 dated 31st March 2021 MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF DIRECT TAXES) NOTIFICATION New Delhi, the 31st March, 2021 S.O. 1432(E).-In exercise of the powers conferred by subsection (1) of section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) (hereinafter referred to as the said Act), and in partial modification of the notification of the Government of India in the Ministry of Finance, (Department of Revenue) No.93/2020 dated the 31st December, 2020, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), vide number S.O. 4805(E), dated the 31st December, 2020, the Central Government hereby specifies that,-- (A) where the specified Act is the Income-tax Act, 1961 (43 of 1961) (hereinafter referred to as the Income-tax Act) and, - (a) the completion of any action referred to in clause (a) of sub-section (1) of section 3 of the Act relates to passing of an order under sub....
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.... Notification No.38 of 2021 dated 27th April 2021 and later a Notification No.74 of 2021 dated 25th June 2021. Notification Nos.20 of 2021 and 38 of 2021 are the impugned notifications. Notification No.38 of 2021 and 74 of 2021 read as under : Notification No.38/2021 dated 27th April 2021 MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF DIRECT TAXES) NOTIFICATION New Delhi, the 27th April, 2021 S.O. 1703(E).- In exercise of the powers conferred by sub-section (1) of section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) (hereinafter referred to as the said Act), and in partial modification of the notifications of the Government of India in the Ministry of Finance, (Department of Revenue) No. 93/2020 dated the 31st December, 2020, No. 10/2021 dated the 27th February, 2021 and No. 20/2021 dated the 31^st March, 2021 , published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), vide number S.O. 4805(E), dated the 31st December, 2020, vide number S.O. 966(E) dated the 27th February, 2021 and vide number S.O. 1432(E) dated the 31st March, 2021, respectively (hereina....
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....AR BHOOT, Jt. Secy. Tax Policy & Legislation Division Note : The principal notification was published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (ii) vide S.O. No. 4805 dated 31st December, 2020. (emphasis supplied) Notification No.74/2021 dated 25th June 2021 MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF DIRECT TAXES) NOTIFICATION New Delhi, the 25th June, 2021 S.O. 2580(E).-In exercise of the powers conferred by sub-section (1) of section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) (hereinafter referred to as the said Act), and in partial modification of the notifications of the Government of India in the Ministry of Finance, (Department of Revenue) No. 93/2020 dated the 31st December, 2020, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), vide number S.O. 4805(E), dated the 31st December, 2020 and No. 10/2021 dated the 27th February, 2021, published in the Gazette of India, Extraordinary, Part-II, Section 3, Subsection (ii),vide number S.O. 966(E) dated the 27th February, 2021 and No. 20/2021 dat....
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....ch time limit shall further stand extended to the 30th day of September, 2021. [Notification No. 74/2021/ F. No. 370142/35/2020-TPL] SHEFALI SINGH, Under Secy., Tax Policy and Legislation Division Note : The principal notification was published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (ii) vide S.O.No. 4805(E) dated 31st December, 2020 and was last amended vide S.O.1703(E) dated 27th April,2021. (emphasis supplied) 22. Under Notification No.20 of 2021, the time limit was extended to 30th April 2021. Under Notification No.38 of 2021, the time limit for issuing notice under Section 148 of the Act was extended to 30th June 2021. 23. In background of these facts and statutory provisions, the contentions raised in the petitions are : (a) upon enactment of the Finance Act, 2021, the provisions contained in the Act pertaining to reassessment of income stood substituted by new set of provisions and upon such substitution the old provisions ceased to exist. There is no indication, either in express terms or implied, in the newly introduced provisions that the legislature desired to retain the old provisions for the past perio....
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....ts for taking actions and making compliances. These extensions were for the benefit of both, actions that had to be taken by the Revenue as well as compliances which had to be made by the assessees. The assessees cannot take advantage of the unusual circumstances prevailing on account of COVID-19. The CBDT, therefore, in exercise of powers conferred in subsection (1) of Section 3 of the Relaxation Act, has issued necessary explanation which merely clarifies which statutory provisions any way provide. This explanation makes explicit what is otherwise implicit under the Act. The same is well within the power of the Government. 25. Two questions, therefore, which come up for our consideration are : (a) Whether, after introduction of new provisions for reassessment of income by virtue of the Finance Act, 2021 with effect from 1st April 2021, substituting the then existing provisions, would the substituted provisions survive and could be used for issuing notices for reassessment for the past period?; (b) Whether the explanations contained in the CBDT CircularNos.20 of 2021 of 31st March 2021 and 38 of 2021 of 27th April 2021 are legal and valid? 26. A Division Be....
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....d in that manner, the laws are harmonized. 67. It may also be not forgotten, a reassessment proceeding is not just another proceeding emanating from a simple show cause notice. Both, under the pre- existing law as also under the law enforced from 01.04.2021, that proceeding must arise only upon jurisdiction being validly assumed by the assessing authority. Till such time jurisdiction is validly assumed by assessing authority - evidenced by issuance of the jurisdictional notice under Section 148, no re-assessment proceeding may ever be said to be pending before the assessing authority. The admission of the revenue authorities that all re-assessment notices involved in this batch of writ petitions had been issued after the enforcement date 01.04.2021, is tell-tale and critical. As a fact, no jurisdiction had been assumed by the assessing authority against any of the petitioners, under the unamended law. Hence, no time extension could ever be made under section 3(1) of the Enabling Act, read with the Notifications issued thereunder. 68. The submission of the learned Additional Solicitor-General of India that the provision of Section 3(1) of the Enabling Act gave an o....
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....granted on account of general hardship existing upon the spread of pandemic COVID -19. After enforcement of the Finance Act, 2021, it applies to the substituted provisions and not the pre-existing provisions. 72. Reference to reassessment proceedings with respect to pre-existing and now substituted provisions of Sections 147 and 148 of the Act has been introduced only by the later Notifications issued under the Act. Therefore, the validity of those provisions is also required to be examined. We have concluded as above, that the provisions of Sections 147, 148, 148A, 149, 150 and 151 substituted the old/pre-existing provisions of the Act w.e.f. 01.04.2021. We have further concluded, in absence of any proceeding of reassessment having been initiated prior to the date 01.04.2021, it is the amended law alone that would apply. We do not see how the delegate i.e. Central Government or the CBDT could have issued the Notifications, plainly to over reach the principal legislation. Unless harmonized as above, those Notifications would remain invalid. 73. Unless specifically enabled under any law and unless that burden had been discharged by the respondents, we are unable to....
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.... the Legislature been to keep the erstwhile provisions alive, it would have introduced the new provisions with effect from 1st July, 2021, which has not been done. Accordingly, the notices relating to any assessment year issued under Section 148 on or after 1st April, 2021 have to comply with the provisions of Sections 147, 148, 148A, 149 and 151 of the Income Tax Act, 1961 as specifically substituted by the Finance Act, 2021 with effect from 1st April, 2021. 45. Consequently, this Court is of the opinion that as the Legislature has permitted re-assessment to be made in this manner only, it can be done in this manner, or not at all. SECTION 3(1) OF RELAXATION ACT EMPOWERS THE GOVERNMENT/EXECUTIVE TO EXTEND ONLY THE TIME LINES. CONSEQUENTLY, THE GOVERNMENT/EXECUTIVE CAN NEITHER MAKE OR CHANGE LAW OF THE LAND NOR CAN IT IMPEDE THE IMPLEMENTATION OF LAW MADE BY THE PARLIAMENT. 46. Upon perusal of Section 3(1) of Relaxation Act,2020, this Court is of the view that it extends only the time lines. Section 3(1) of the Relaxation Act, 2020 stipulates that where, any time limit has been stipulated in a specified Act which falls between the period 20th day of March....
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.... to answer these questions ourselves with the aid of statutory provisions and law laid down in various decisions cited before us we may summarise certain principles applicable in the field of taxation and which principles would be invoked in the course of the judgment :- (i) A taxing statute must be interpreted strictly. Equity has no place in taxation nor while interpreting taxing statute intendment would have any place. In case of State of W.B. Vs. Kesoram Industries Ltd. And Ors., (2004) 10 SCC 201, referring to Article 265 of the Constitution which provides that no tax shall be levied or collected except by authority of law, it was observed that in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted by any presumption or assumption. A taxing statute has to be interpreted in light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency. Before taxing any person it must be shown that he falls within the ambit of charging section by clear words used in the section and if the words are ambiguous and o....
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....terpreted to include those, which were not intended by the legislature." (ii) Being the central legislation of pan-India effect and operating in the field of taxation, the view of another High Court would have considerable persuasive value. In other words, the High Court would have due regard to the view already expressed by another High Court and to the possible extent prefer consistency of views across the country over discord. Unless the view expressed by another High Court is plainly unacceptable to the Court, the High Court would lean in favour of the well considered view already expressed by another Court. (iii) The speech made the Finance Minister on the floor of the House explaining the budgetary provisions would provide a useful tool in interpreting the taxing provisions particularly in case (99 of 113) [CW-969/2022] the dispute about their interpretation arises. When the Finance Minister who has piloted the budget in her speech explains the provisions contained in the Finance Bill and elaborates on the mischief which prevails and which is sought to be cured by substituting the existing statutory provisions, the explanation rendered by the Finance Ministe....
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....e are at least three decisions of this Court, one in Sole Trustee Loka Shikshana Trust v. CIT: [1975]101 ITR 234, the other in Indian Chamber of Commerce v. CIT: [1975]101 ITR 796 and the third in Additional CIT v. Surat Art Silk Cloth Manufacturers Association [1980] 121 ITR 1/[1980] 2 Taxman 501, where the speech made by the Finance Minister while introducing the exclusionary clause in Section 2 Clause (15) of the Act was relied upon by the Court for the purpose of ascertaining what was the reason for introducing that clause. The speech made by the Finance Minister while moving the amendment introducing Sub-section (2) clearly states what were the circumstances in which Sub-section (2) came to be passed, what was the mischief for which Section 52 as it then stood did not provide and which was sought to be remedied by the enactment of Subsection (2) and why the enactment of Sub-section (2) was found necessary. It is apparent from the speech of the Finance Minister that Sub-section (2) was enacted for the purpose of reaching those cases where there was under-statement of consideration in respect of the transfer or to put it differently, the actual consideration received for the tra....
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....tion 147 of the Act. However, it must be appreciated that an assessment previously framed after scrutiny when reopened, results into considerable hardship to the assessee. The assessment gets reopened not only qua those grounds which are recorded in the reasons, but also with respect to the entire original assessment, of course at the hands of the Revenue. This obviously would lead to considerable hardship and uncertainty. It is precisely for this reason that even while recognizing such powers, in special requirements of the statute, certain safeguards are provided by the statute which are zealously guarded by the courts. Interpreting such statutory provisions courts upon courts have held that an assessment previously framed cannot be reopened on a mere change of opinion. It is stated that the power to reopening cannot be equated with review." 32. The fact that under the Finance Act, 2021 the provisions for reassessment were substituted is beyond doubt. The notes on clauses for making relevant amendments clearly at every stage provide that the Bill proposes to substitute the existing provisions. For example it is stated that clause 35 seeks to amend Section 147 of the Act ....
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....e word "substitute" has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague". 25. In Zile Singh v. State of Haryana and Ors. wherein the effect of an amendment in the Haryana Municipal Act, 1973 by Act No. 15 of 1994 whereby the word "after" was substituted by the word "upto" fell for consideration; wherein Lahoti, C.J. speaking for a three Judge Bench held the said amendment to have a retrospective effect being declaratory in nature as thereby obvious absurdity occurring in the first amendment and bring the same in conformity with what the legislature really intended to provide was removed, stating: (SCC p. 12 paras 23-25) "23. The text of Section 2 of the Second Amendment Act provides for the word ""upto"" being substituted for the word "after". What is the meaning and effect of the expression employed therein - "shall be substituted"? 24. The substitution of one text for the other preexisting text is one of the known an....
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....v. Union of India.) When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption (105 of 113) [CW969/2022] against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley. The continuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. v. Moore, Ratan Lal case and R.S. Raghunath v. State of Karnataka)" 35. In case of State of Rajasthan Vs. Mangilal Pindwal,reported in (1996) 5 SCC 60, it was observed that substitution of a provision results in repeal of the old provision and repl....
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....at original provisions upon their substitution stood repealed for all purposes and had no existence after introduction of the substituting provisions. We may refer to Section 6 of the General Clauses Act, 1897 which provides inter- alia that where the State Act or Central Act or regulation repeals any enactment then unless a different intention appears repeal shall not revive anything not in force or existing at the time at which the repeal takes effect or affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. Under the circumstances after substitution unless there is any intention discernible in the scheme of statute either pre-existing or newly introduced, the substituted provisions would not survive. 37. In this context we have perused the provisions of reassessment contained in the Finance Act, 2021. We have noticed earlier the major departure that the new scheme of reassessment (107 of 113) [CW-969/2022] has made under these provisions. The time limits for issuing notice for reassessment have been changed. The concept of income chargeable to tax escaping assessment on account of failure on the part of the assessee to d....
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....years by resorting to the larger period of limitation prescribed in newly substituted clause (b) of Section 149(1). This would indicate that the notice that would be issued after 01.04.2021 would be in terms of the substituted Section 149(1) but without breaching the upper time limit provided in the original Section 149(1) which stood substituted. This aspect has also been highlighted in the memorandum explaining the proposed provisions in the Finance Bill. If according to the revenue for past period provisions of section 149 before amendment were applicable, this first proviso to section 149(1) was wholly unnecessary. Looked from both angles, namely, no indication of surviving the past provisions after the substitution and in fact an active indication to the contrary, inescapable conclusion that we must arrive at is that for any action of issuance of notice under Section 148 after 01.04.2021 the newly introduced provisions under the Finance Act, 2021 would apply. Mere extension of time limits for issuing notice under section 148 would not change this position that obtains in law. Under no circumstances the extended period available in clause (b) of sub-section (1) of Section 149 w....
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..... and Ors. Vs. Union of India and Ors., reported in (2007) 13 SCC 673, it was observed as under :- "63. At the outset, we may state that on account of globalization and socio-economic problems (including income disparities in our economy) the power of Delegation has become a constituent element of legislative power as a whole. However, as held in the case of Indian Express Newspaper v. Union of India reported in (1985) 1 SCC 641 at page 689, subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is inconsistent with the provisions of the Act or that it is contrary to some other statute applicable on the same subject matter. Therefore, it has to yield to plenary legislation. It can also be questioned on the ground that it is manifestly arbitrary and unjust. That, any inquiry into its vires must be confined to the grounds on whi....
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....ad made it clear to Mr. Anil Singh, learned ASG that we were inclined to go along with the view expressed by the three Division Benches of Allahabad High Court, Rajasthan High Court and Delhi High Court. During the hearing our attention was invited to the judgment of the Division Bench of Madras High Court in Vellore Institute of Technology (Supra). We expressed that we were inclined to take a similar view as expressed by all the Division Benches and independently also we hold the same view. We also indicated to the learned ASG that we were unable to persuade ourselves to accept the analysis of the learned Single Judge of the Chhattisgarh High Court in Palak Khatuja (Supra). 30. We asked Mr. Anil Singh, learned ASG if he has anything more to argue apart from the submissions of Revenue already recorded in these judgments of the four Division Benches. Mr. Anil Singh, learned ASG answered in affirmative. 31. Before we proceed further in detail with the submissions of the learned ASG, Mr. Mistri and Mr. Pardiwalla, we would note the compact submissions made by Mr. Chatterji and Mr. Andhyarujina : (a) Mr. Chatterji, inter alia, emphasized that once legislature has exercis....
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....ue before those Courts. Revenue's additional arguments, as set out in the synopsis, are as under : A. The Notifications do not result in creating an overlap in statutory schemes and there is no question of the Executive seeking to apply provisions of law after they have been substituted/repealed by Parliament. Relaxation Act applies only to actions to be taken between 20th March 2020 and 31st March 2021, a date before the Finance Act, 2021 came into force. Thus, Relaxation Act and the Notifications would apply only in respect of matters where the time fell due for any act prior to Finance Act, 2021 coming into force, i.e., prior to 31st March 2021. However, Relaxation Act permits the action to be taken in such cases within certain extended timelines owing to the pandemic. B. The use of the word "such action" in Section 3(1) of the Relaxation Act reveals the legislative intent that it is the very same "action" which is permitted to be complied with within the extended deadline. As a sequitur, all legal conditions precedent, pre-requisites, limitations and procedural norms as applicable on the original date on which "such action" was required to be completed/comp....
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....hey had already argued/ contended that as the original time limit for issuing a notice under Section 148 of the Act was expiring on or before 31st March 2021 and such time limit has been extended by the Relaxation Act, the old/unamended provisions of Section 148 of the Act will continue to govern such notices. This submission of respondents ignores the legal position that the provisions of Sections 147 to 151 of the Act have been substituted with effect from 1st April 2021 by the Finance Act, 2021. Further a new Section 148A of the Act has been inserted with effect from 1st April 2021. Accordingly, the old/unamended provisions of Sections 148 to 151 cease to have legal effect after 31st March 2021 and the substituted provisions of Sections 148 to 151 have binding force from 1st April 2021. In the absence of a savings clause there is no legal device by which a repealed set of provisions can be applied and a set of provisions on the statute book (in force) can be ignored. Further if the revenue's contention had the semblance of legality or validity, the impugned Explanations in Notification Nos. 20 and 38 of 2021 are otiose and superfluous. Moreover, Revenue's arguments are unsustain....
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....ut such Acts must be performed in accordance with the provisions of the specified Acts. Therefore, if there is an amendment in the specified Act, the amended provision of the specified Act would apply to such actions of the Revenue. The Delhi High Court has considered and rejected the contention of the Revenue that the notice issued after 1st April 2021 relates back to an earlier period. 38. The Delhi High Court has considered and rejected this argument of the Revenue that Relaxation Act creates a legal fiction such that the notices issued under Section 148 of the Act are deemed to be issued on 31st March, 2021. The so-called legal fiction is directly contrary to the Revenue's own Circular No.549 of 1989, which is binding on them as well as the well settled principle that the validity of a notice is to be judged on the basis of the law that prevails at the time of its issue. 39. Even though Relaxation Act was in existence when the Finance Act, 2021 was passed, the parliament has specifically made the amended provisions of Sections 147 to 151 of the Act as being applicable with effect from 1st April, 2021. Therefore, the intention of the legislature is clear that substituted p....
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....that amendment is to be applied from 1st April, 2021. Further, when there is no ambiguity on the applicability of the provision, there is no question of resorting to purpose test. 43. As regards liberty granted by the Allahabad High Court, certainly, if the law permits issuance of notices under Section 148 of the Act (as amended), afresh, then no liberty is required to be granted by the Court, and it would be within the Assessing Officer's powers to initiate proceedings as per the amended law. The Madras High Court has considered this very plea and granted liberty to initiate reassessment proceedings in accordance with the provisions of the amended Act, "if limitation for it survives". 44. As submitted by Mr. Mistri, with whom we agree, Chapter II of Relaxation Act provide for - "Relaxation of Certain Provisions of Specified Act"and Section 3 forms part of this Chapter. Further Chapter III provides for amendment to Income Tax Act, 1961 and various Sections of the Act have been amended in Chapter III. From this the following propositions emerge : (a) Wherever the Parliament thought fit, the Parliament has itself amended the provision of the Income Tax Act, 1961 and no....
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....issue notifications which would permit the Assessing Officers to issue notices under Section 148 of the Act after 1st April, 2021 in terms of the erstwhile provisions of Sections 147 to section 151, even though the said provisions were repealed with effect from 1st April, 2021 by the Finance Act, 2021. It is, however, pertinent to note that Section 3 of Relaxation Act falls in Chapter II of the said Act, which is titled 'Relaxation of Certain Provisions of Specified Act'. In contradistinction, Section 4 of Relaxation Act which does amend several provisions of the Act falls in Chapter III, which is titled 'Amendments to the Income Tax Act, 1961'. It will be apposite to notice that the amendments provided for in Section 4 were made by the Legislature itself in terms of the said Section and no such power to amend the Act was delegated to the Central Government. Therefore, we would agree with Mr. Pardiwalla that it is only Section 4 of Relaxation Act which amended the Act and no such amendments to the substantive provisions of the Act were envisaged under Section 3 of Relaxation Act, which was only a relaxation provision dealing with time limits under various enactments. 48. Mr. Par....