TaxTMI 
TaxTMI 
2023 (12) TMI 651
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....osal of this petition are that petitioner submitted return of the income tax for the assessment year 2013-14 declaring total income of Rs. 8,69,240/-. On 09.06.2021, Respondent No. 3 issued notice to petitioner under Section 148 of the Income Tax Act, 1961 (henceforth "Act of 1961") stating that income chargeable to tax for the assessment year 2013-14 has escaped assessment. During the pendency of proceedings of reassessment, petitioner submitted an application on 02.03.2022 to the Assistant Commissioner of Income Tax (Assessing Officer) requesting to provide certified copy of the reasons recorded under Section 148(2) of the Act of 1961 along with documents, statement and investigation reports etc. referred in the reasons if any and the sanction taken under Section 151 of the Act to file submissions to completely defend the case. Application was considered and decided on 25.03.2022 and considering the decision in the case of Acorus Unitech Wireless Pvt. Ltd. vs. ACIT [(2014) 43 taxmann.com 62 (Delhi)] wherein it was held that in terms of Section 148, law only requires that information or material on which Assessing Officer records his or her satisfaction has to be communicated to a....
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....sed by Hon'ble Supreme Court in the case of Ashish Agrawal (supra) and held that the notice issued under Section 148 after 01.04.2021 shall be deemed to have been issued under Section 148-A of the Act of 1961 to pass order under Section 148(A)(d) and therefore the petitioner filed an application under Section 154 of the Act of 1961 requesting for rectification of the order dated 30.03.2022 which also came to be dismissed. It is further contended that as the notice under Section 148 issued by Respondent No. 3 is in violation of the provisions under Section 148A, 148A(b) and 148A(d), without providing the information and material relied upon by the Revenue and therefore the order of assessment is in violation of principle of natural justice. The order has been passed without giving proper opportunity of hearing as the notice under Section 148 of the Act of 1961 was issued without following procedure as provided under Section 148A and the order of assessment, Annexure P-8, is in violation of principle of natural justice, hence, writ petition be allowed. 4. Mr. Ajay Kumrani, learned counsel for respondents vehemently opposed the submission of counsel for petitioner and would subm....
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.... be allowed by the Assessing Officer on the basis of an application made in this regard by the assessee], a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139: Provided that no notice under this section shall be issued unless there is information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant assessment year and the Assessing Officer has obtained prior approval of the specified authority to issue such notice: ^16[Provided further that no such approval shall be required where the Assessing Officer, with the prior approval of the specified authority, has passed an order under clause (d) of section 148A to the effect that it is a fit case to issue a notice under this section:] ....
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.... the income chargeable to tax has escaped assessment in the case of the assessee 21[where] the search is initiated or books of account, other documents or any assets are requisitioned or survey is conducted in the case of the assessee or money, bullion, jewellery or other valuable article or thing or books of account or documents are seized or requisitioned in case of any other person. Explanation 3.-For the purposes of this section, specified authority means the specified authority referred to in section 151.] 148A. Conducting inquiry, providing opportunity before issue of notice under -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, ^23[***] 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 days from the date on which such notice is issued, or such time, as may be exte....
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....notice.- (1) No notice under section 148 shall be issued for the relevant assessment year,- (a) if three years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b); ^27[(b) if three years, but not more than ten years, have elapsed from the end of the relevant assessment year unless the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income chargeable to tax, represented in the form of- (i) an asset; (ii) expenditure in respect of a transaction or in relation to an event or occasion; or (iii) an entry or entries in the books of account, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more:] Provided that no notice under section 148 shall be issued at any time in a case for the relevant assessment year beginning on or before 1st day of April, 2021, if ^28[a notice under section 148 or section 153A or section 153C could not have been issued at that time on account of being beyond the time limit specified under the provisions of clause (b) of sub-section (1) of this section or section 153A....
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.... Provided also that where immediately after the exclusion of the period referred to in the immediately preceding proviso, the period of limitation available to the Assessing Officer for passing an order under clause (d) of section 148A 30[does not exceed seven days], such remaining period shall be extended to seven days and the period of limitation under this sub-section shall be deemed to be extended accordingly. Explanation.-For the purposes of clause (b) of this sub-section, "asset" shall include immovable property, being land or building or both, shares and securities, loans and advances, deposits in bank account. ^31[(1A) Notwithstanding anything contained in sub-section (1), where the income chargeable to tax represented in the form of an asset or expenditure in relation to an event or occasion of the value referred to in clause (b) of sub-section (1), has escaped the assessment and the investment in such asset or expenditure in relation to such event or occasion has been made or incurred, in more than one previous years relevant to the assessment years within the period referred to in clause (b) of sub-section (1), a notice under section 148 shall be i....
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....1) and sub-section (2) shall, as soon as may be after the notification is issued, be laid before each House of Parliament. 7. Under the amended provisions, before issuance of notice under Section 148, the provisions under Section 148A has to be mandatorily complied with. Section 148A clearly talks about conducting an enquiry providing opportunity of hearing and only after passing an order under Section 148A(d), notice under Section 148 of the Act of 1961 can be issued. The submission of learned counsel for petitioner that no proceeding has been initiated under Section 148A before issuance of notice under Section 148 is not disputed by the respondents in their reply but in the pleadings it is mentioned that the assessment proceeding is completed on 30.03.2022 whereas the decision of Hon'ble Supreme Court in the case of Ashish Agarwal (supra) was passed on 04.05.2022. 8. The amended provisions under Section 148 and 148A came into force w.e.f. 01.04.2021, notice under Section 148 was issued on 09.06.2021 without following the procedure as provided under Section 148A. Notice under Section 148 was issued after 01.04.2021 without following procedure provided under Section 148A of t....
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....ive remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [ See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. (1998) 8 SCC 11]. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings." 10. Recently, Hon'ble Supreme Court in the case of Assistant Commissioner of Sales Tax & others vs. Commercial Steel Limited [(2021) SCC OnLine SC 884, has observed thus: "11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petitio....