2024 (5) TMI 1022

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....ppropriate writ, order or direction to quash the Notice dated 09.01.2024 (Annexure-6) issued by Respondent fixing 16.01.2024 as the date of hearing of case on merits including consequential order passed, if any during the pendency of the writ petition. B. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the Petitioner. C. Allow the Writ Petition with costs; D. Any other order/direction, which Hon'ble court deems appropriate." 2. Brief facts of the case, as placed before this Court by Mr. Sanjay Jhanwar, learned Senior Counsel assisted by Mr. Prakul Khurana appearing for the petitioner-firm, are that the petitioner filed his income tax return on 24.09.2013 declaring a total income of Rs. 4,98,43,110/-. In the said income tax return, the petitioner has also reflected a Dividend income of Rs. 21,58,735/- received from investment in Mutual Funds of UTI Ltd. and tax paid on the short-term capital gain. Upon the scrutiny of the petitioner's income tax return, a notice was issued by the respondents and the assessment under Section....

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.... relate back to the original Assessment Order and, therefore, the limitation would start from the original Assessment Order and not from the Reassessment Order. We are fortified with our view by the decision of this Court in the case of Commissioner of Income Tax, Chennai v. Alagendran Finance Ltd. (2007) 7 SCC 215. As observed and held by this Court in the aforesaid decision, once an order of assessment is re-opened, the previous Order of Assessment is re-opened, the previous order of assessment will be held to be set aside and the whole proceedings would start afresh but the same would not mean that even when the subject matter of re-assessment is distinct and different, the entire proceedings of assessment would be deemed to have been re-opened. Meaning thereby, only in a case where the issues before the Commissioner at the time of exercising powers under Section 263 of the Act relate to the subject matter of re-assessment, the limitation would start from the date of Re-assessment Order. However, if the subject matter of the re-assessment is distinct and different in that case the relevant date for the purpose of determination of period of limitation for exercising powers under ....

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.... which Section 147 of the Act of 1961 has been invoked. He further takes this Court to Sections 147 & 148 of the Act of 1961, which read as follows:- "147. Income escaping assessment.-If the [Assessing Officer] [has reason to believe] that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part o....

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....f October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under clause (ii) of sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice." 7.2. Learned counsel thus placed reliance on that prescription of Section 147 of the Act of 1961, which provides that for the purpose of assessment and reassessment or re-computation of the escaped assessment, any issue(s) which come to the notice subsequently in the course of proceedings, ought to have been taken into consideration by the authority, while initiating the proceedings under Section 147 of the Act of 1961, and since such proceedings have been illegally drawn without taking into due consideration the complete spectrum of reassessment and re-computation, therefore, the order dated 25.03.2022 is ex facie illegal, unlawf....