TaxTMI 
TaxTMI 
2024 (7) TMI 726
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....n of India arises from an action as resorted by the respondents against the petitioner which has culminated into issuance of a notice under Section 148 of the Income Tax Act (for short, "the Act"). 3. The assessment year in question is 2016-17. We may refer to the reliefs the petitioner has prayed for, which read thus:- ""a. that this Hon'ble Court be pleased to issue a Writ of Certiorari or any other writ order or direction under Article 226 of the Constitution of India calling for the records of the case leading to the issue of the impugned initial notice (Exhibit AA) dated May 28, 2022, passing of the impugned order (Exhibit CC) dated July 30, 2022 and the issue of the impugned notice (Exhibit DD) dated July 30, 2022 and afte....
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....ssued in breach of the provisions of Section 151 of the Act, which provides for a sanction by the specified authority before issuance of notice. It is his submission that in the present case, such sanction to issue the impugned notice dated 30 July, 2022 was issued by the Principal Commissioner which itself is contrary to the provisions of Section 151 (ii), in as much as admittedly the impugned notice was issued after a period of more than 3 years having elapsed from that of the relevant assessment year 2016-17, hence, such sanction ought to have been issued by the Specified Authority as set out in Section 151(ii) and not by an authority falling under clause (i) of the said provision. It is his submission that once such compliance itself wa....
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....ions of Section 151 and Section 148A of the Act as it stood at the relevant time i.e. when the impugned notice was issued, which read thus:- "148A - Conducting inquiry, providing opportunity before issue of notice under section 148 The Assessing Officer shall, before issuing any notice under section 148,- (a) ---------- (b) provide an opportunity of being heard to the assessee, [***] 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 extended by him on the basis of an application in this behalf, as to why a notice under section ....
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.... belongs to the assessee; or (c) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any books of account or documents, seized in a search under section 132 or requisitioned under section 132A, in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, [relate to, the assessee; or (d) the Assessing Officer has received any information under the scheme notified under section 135A pertaining to income chargeable to tax escaping assessment for any assessment year in the case of the assessee.] 151. Sanction for issue of notice Specified authority for the purposes of section 148 and section ....
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....2. Such amended provision would squarely become applicable the date of notice under section 148 itself being 30 July, 2022. 9. The record clearly indicates that the sanction in the present case was issued by the Principal Commissioner which can only be in respect of cases if three years or less than three years have elapsed from the end of the relevant assessment year, as would fall under the provisions of clause (i) of Section 151 of the Act. As in the present case the assessment year in question is 2016-17 and the impugned notice itself has been issued on 30 July, 2022, it is issued after a period more than 3 years having elapsed from the end of the said assessment year, hence, clause (ii) of Section 151 of the Act was applicable, whic....
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....ed in terms of section 151 (i) of the Act, the impugned order and impugned notice are bad in law and should be quashed and set aside. 11. Insofar as the respondent's case based on the notification dated 31 March, 2020 issued under the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (for short, 'TOLA') was concerned, the Court held that such notification was a subordinate legislation and it could not override the statute enacted by the Parliament and in that regard, the position in law was discussed by the Division Bench in paragraph 27 of the said decision. 12. In the present case, it is not in dispute that an appropriate sanction of the specified authority as per the provisions of Section 151 (ii) o....