TaxTMI 
TaxTMI 
2024 (9) TMI 152
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....the Act dated 31.05.2022 ("Exhibit E"), the order passed u/s. 147 read with section 144 of the Act dated 31.03.2024 ("Exhibit I"), the notice of demand in u/s. 156 dated 31.03.2024 ("Exhibit M") as well as the show-cause notice under section 274 read with section 271 (1) (c) of the Act dated 31.03.2024 ("Exhibit N"). (b) that this Hon'ble Court may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or direction, calling for the records of the Petitioner's case and after going into the legality and propriety thereof, to direct the Respondent No. 1 & 2 to withdraw the said notice under section 148 of the Act dated 25.07.2022 ("Exhibit G"), Order under section 148A (d) of the Act dated 25.07.2022 ("Exhibit F"), show cause notice under section 148A (b) of the Act dated 31.05.2022 ("Exhibit E"), the order passed u/s. 147 read with section 144 of the Act dated 31.03.2024 ("Exhibit L"), the notice of demand in u/s. 156 dated 31.03.2024 ("Exhibit M") as well as the show-cause notice under section 274 read with section 271 (1) (c) of the Act dated 31.03.2024 ("Ex....
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....that in terms of what was held by the Supreme Court in Ashish Agarwal (supra), an order under Section 148A (d) was passed on 25th July, 2022, which was beyond the period of limitation as prescribed under the first proviso to Section 149 of the Act, for issuance of notice under section 148 of the Act. According to the Petitioner, the prescribed limitation of six years to issue a notice under section 148 of the Act expired on 31st March, 2022, as per the provisions of Section 149 of the Act (as it stood prior to amendment by Finance Act, 2021 brought into effect from 1st April 2021). 5. The learned Counsel for the Petitioner has contended that the very issue had fell for consideration of a Division Bench of this Court in Hexaware wherein one of the questions considered by the Court as "(Question No.2) Whether the notice in the said case dated 27th August, 2022 issued under Section 148 of the Act was barred by limitation as per the first proviso to Section 149 of the Act?". The issue was answered in terms of what was held by the Court in Paragraph 24 to 29 of Hexaware. The Division Bench in such context has observed that :- 25. Section 149 (1) (b) of the erstwhile provisio....
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....iso. It is a settled principle of law that when limitation has already expired, it cannot be revived by way of a subsequent amendment and, hence, for Assessment Years 2013-2014 and 2014-2015 proviso to Section 149 of the Act was not required. Hence, to give meaning to the proviso it has to be interpreted to be applicable for Assessment Years upto 2021-2022. In CIT v. Onkarmal Meghraj (H.U.F.) [1974] 93 ITR 233 (SC), the Hon'ble Apex Court was dealing with the question whether a proviso could be applied without reference to any period of limitation. It held that "it is a well-settled principle that no action can be commenced where the period within which it can be commenced has expired. It is unnecessary to cite authorities in support of this position. Does the fact that the second proviso says that there is no period of limitation make a difference?" 29. It was submitted on behalf of Revenue that the period of limitation for the purposes of Section 149 of the Act has to be seen with respect to the original notice under section 148 of the Act, which was issued to petitioner on 8th April 2021 and as the said notice was issued within the period of six years from the end o....
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....ot different from what had fallen for consideration of the Division Bench in Hexaware insofar as the issue of limitation was concerned. She would, however, submit that, as in the present case, an assessment order is already passed, it would be appropriate that the Petitioner be relegated to an alternate remedy of a statutory appeal available to the Petitioner in law. 7. Responding to the contention as urged on behalf of the Revenue, Mr. Dharan Gandhi, learned counsel for the Petitioner would submit that the impugned notice under Section 148 of the Act itself was issued on 25th July, 2022, which is admittedly beyond the prescribed period of limitation under Section 149 hence the impugned order ex facie was beyond the prescribed limitation for any action to be taken under the provisions of Section 148 of the Act and consequently under Section 147 of the Act, as held in Hexaware. It is hence submitted that this Court needs to entertain this petition without relegating the petitioner to avail of a statutory remedy of an appeal. 8. Learned counsel for the petitioner has also drawn our attention to the decision of this Court in Kairos Properties Pvt Ltd. V. Assistant Commissioner o....
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....t, we may also usefully refer to the decision rendered by us in Bhoomi Viral Shah vs. Income-tax Officer, Ward 2(1), Thane & Ors. Writ Petition 10815 of 2024), where in somewhat similar circumstances, as also referring to the decision in New India Assurance Company Ltd. vs. Assistant Commissioner of Income Tax & Ors. [2024] 158 taxmann.com 367 (Bom), we had allowed the petition in terms of the following observations :- "The Revenue's contention that the reopening notice was to relate back to an earlier date is entirely flawed and unacceptable. Thus, the reassessment notices issued for AY 2013-14 are patently barred by limitation as the six years limitation period under the Act (as extended by Section 3 of TOLA) expired by 31st March 2021. However, even on the Revenue's demurrer and assuming that such reopening notices could travel back in time and that the provisions of TOLA protected such reopening notices (we do not agree), even then, in so far as the notices issued for AY 2013-14 is concerned, would in any case be barred by limitation. As stated earlier, under the erstwhile Section 149, a notice under Section 148 could have been issued within a period of six years from ....