TMI Blog2022 (1) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... ble with effect from 1st April, 2021 before issuance of notices under Section 148 of the Act on or after 1st April, 2021 - HELD THAT:- As decided in Ashok Kumar Agarwal vs- Union of India [ 2021 (10) TMI 697 - ALLAHABAD HIGH COURT ], Bpip Infra Private Limited vs- Income Tax Officer, Ward 4 (1), Jaipur [ 2021 (12) TMI 207 - RAJASTHAN HIGH COURT ] and Man Mohan Kohli vs- Assistant Commissioner of Income Tax Anr.[ 2021 (12) TMI 664 - DELHI HIGH COURT ] Ordinance, the Enabling Act and Sections 2 to 88 of the Finance Act 2021, as enforced w.e.f. 01.04.2021, are not conflicted. Insofar as the Explanation appended to Clause A(a), A(b), and the impugned Notifications dated 31.03.2021 and 27.04.2021 (respectively) are concerned, we declare that the said Explanations must be read, as applicable to reassessment proceedings as may have been in existence on 31.03.2021 i.e. before the substitution of Sections 147, 148, 148A, 149, 151 151A of the Act. Consequently, the reassessment notices in all the writ petitions are quashed. Keeping in view the aforesaid conclusions, Explanations A(a)(ii)/A(b) to the Notifications dated 31st March, 2021 and 27th April, 2021 are declared to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2021, W.P.O. No. 357 of 2021, W.P.O. No. 358 of 2021, W.P.O. No. 359 of 2021, W.P.O. No. 364 of 2021, W.P.O. No. 365 of 2021, W.P.O. No. 367 of 2021, W.P.O. No. 370 of 2021, W.P.O. No. 371 of 2021, W.P.O. No. 372 of 2021, W.P.O. No. 373 of 2021, W.P.O. No. 374 of 2021, W.P.O. No. 377 of 2021, W.P.O. No. 378 of 2021, W.P.O. 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Bilwal Hossain, Mrs. Sudeshna Mazumder, Mr. Rajeev Kumar Agarwal, Mr. Asim Choudhury, Mr. Soham Sen, Mr. Salil Kapoor, Mr. Soumya Singh, Ms. Ananya Kapoor, Ms. Falguni Rambhasha, Mr. Abhra Jena, Mr. Amal Kr. Sen, Mr. Chandrachur Chatterjee, Mr. Jibantaraj Dan Ray, Mr. Suryaneel Das, Mr. Aditya Mondal, Ms. Debjani Chatterjee, Mr. Akash Agarwal, Mr. Sailendra Kr.Tiwari, Mr. Hemant Tiwari, Mr. Pradeep Jewrajka, Ms. Pooja Jewrajka, Mr. Rahul Poddar, Mr. Ananda Sen, Mr. Rano Jain, Mr. Venketesh Chaurasia, Ms. Swapna Das, Mr. Siddharth Das, Mr. Subash Agarwal, Mr. Ankit Agarwal, Mr. Sumit Biswas, Mr. Brijesh Kumar Singh, Ms. Aparajita Rao, Mr. Sanwal Tibrewal, Mr. Saurabh Bagaria, Mr. Aditya Kanodia, Ms. Sutapa Roy Choudhury, Mr. Samrat Goswami, Mr. Tanoy Chakraborty, Mr. Chhandak Dutta, Mr. Navin Mittal, Ms. Aratrika Roy, Mr. R. N. Dutta, Mr. Abhijat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued post 31st March, 2021 by the respondent Income Tax Authority concerned under Section 148 of the Income Tax Act, assessees/petitioners have also sought relief by way of a declaration declaring Explanations A(a)(ii)/A(b) to the Notification No. 20 [S.O. 1432 (E) dated 31st March, 2021 and Notification No. 38 [S.O.1703 (E)] dated 27th April, 2021 to the extent that the same extend the applicability of the provisions of Section 148, Section 149 and Section 151 of the Act, as the case may be, as they stood as on the 31st March, 2021, before the commencement of the Finance Act, 2021 to the period beyond 31st March, 2021 as ultra vires the parent legislation, viz., The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (hereinafter referred to as Relaxation Act, 2020 ). At the outset, all the counsels appearing for the parties jointly submitted that the issues involved in these Writ Petitions are covered by the decision of the Division Bench of the Allahabad High Court in the matter of Ashok Kumar Agarwal vs- Union of India through its Revenue Secretary North Block Ors. (Writ Tax No. 524/2021) decided in favour of assessees/petitioners o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, after 01.04.2021. In support thereof other submission also appear to exist based upon the enactment of Section 148A (w.e.f. 01.04.2021). (iv) The delegation made could be exercised within the four corners of the principal legislation and not to overreach it. Insofar as the Enabling Act does not delegate any power to legislate with respect to enforceability of any provision of the Finance Act, 2021 and those provisions (Sections 2 to 88) had come into force, on their own, on 01.04.2021, any exercise of the delegate under the Enabling Act, to defeat the plain enforcement of that law would be wholly unconstitutional. (v) It also appears to be the submission of learned counsel for the petitioners that the Parliament being aware of all realities, both as to the fact situation and the laws that were existing, it had consciously enacted the Enabling Act, to extend certain time limitations and to enforce only a partial change to the reassessment procedure, by enacting section 151-A to the Act. It then enacted the Finance Act, 2021 to change the substantive and procedural law governing the reassessment proceedings. That having been done, together with introduction of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both of any express provision in itself or to delegate the function to save applicability of the provisions of sections 147, 148, 149 or 151 of the Act, as they existed up to 31.03.2021. Plainly, the Enabling Act is an enactment to extend timelines only. Consequently, it flows from the above 01.04.2021 onwards, all references to issuance of notice contained in the Enabling Act must be read as reference to the substituted provisions only. Equally there is no difficulty in applying the pre-existing provisions to pending proceedings. Looked 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 reassessment proceeding may ever be said to be pending before the assessing authority. The admission of the revenue authorities that all re-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny specific delegation made, to allow the delegate of the Parliament, to indefinitely extend such limitation, would be to allow the validity of an enacted law i.e. the Finance Act, 2021 to be defeated by a purely colourable exercise of power, by the delegate of the Parliament. 71. Here, it may also be clarified, Section 3(1) of the Enabling Act does not itself speak of reassessment proceeding or of Section 147 or Section 148 of the Act as it existed prior to 01.04.2021. It only provides a general relaxation of limitation 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .f. 1.4.2021 without any saving of the provisions substituted, there is no room to reach a conclusion as to conflict of laws. It was for the assessing authority to act according to the law as existed on and after 1.4.2021. If the rule of limitation permitted, it could initiate, reassessment proceedings in accordance with the new law, after making adequate compliance of the same. That not done, the reassessment proceedings initiated against the petitioners are without jurisdiction. 77. Insofar as the decision of the Supreme Court in the case of Ramesh Kymal Vs. Siemens Gamesa Renewable Power Private Limited (supra)is concerned, we opine, the same is wholly distinguishable. Therein The Insolvency and Bankruptcy Code 2016 was amended by the Parliament and a new Section 10A, was introduced, apparently again on account of the difficulties arising from the spread of pandemic COVID-19. That Section reads as under: 10A. Notwithstanding anything contained in sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate the pre-existing law (which that principal legislature had substituted), the exercise made by the delegate/Central Government would be de hors any statutory basis. In absence of any express saving of the pre-existing laws, the presumption drawn in favour of that saving, is plainly impermissible. Also, no presumption exists that by Notification issued under the Enabling Act, the operation of the pre-existing provision of the Act had been extended and thereby provisions of Section 148A of the Act (introduced by Finance Act 2021) and other provisions had been deferred. Such Notifications did not insulate or save, the pre-existing provisions pertaining to reassessment under the Act. 80. In view of the above, all the writ petitions must succeed and are allowed. It is declared that the Ordinance, the Enabling Act and Sections 2 to 88 of the Finance Act 2021, as enforced w.e.f. 01.04.2021, are not conflicted. Insofar as the Explanation appended to Clause A(a), A(b), and the impugned Notifications dated 31.03.2021 and 27.04.2021 (respectively) are concerned, we declare that the said Explanations must be read, as applicable to reassessment proceedings as may have been in existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstituted provisions enacted by the Finance Act, 2021. Consequently, the impugned Explanations in the Notifications dated 31st March, 2021 and 27th April, 2021 are not conditional legislation and are beyond the power delegated to the Government as well as ultra vires the parent statute i.e. the Relaxation Act. Accordingly, this Court is respectfully not in agreement with the view of the Chhattisgarh High Court in Palak Khatuja (supra), but with the views of the Allahabad High Court and Rajasthan High Court in Ashok Kumar Agarwal (supra) and Bpip Infra Private Limited (supra) respectively. 100. The submission of the Revenue that Section 6 of the General Clauses Act saves notices issued under Section 148 post 31st March, 2021 is untenable in law, as in the present case, the repeal is followed by a fresh legislation on the same subject and the new Act manifests an intention to destroy the old procedure. Consequently, if the Legislature has permitted reassessment to be made in a particular manner, it can only be in this manner, or not at all. 101. The argument of the respondents that the substitution made by the Finance Act, 2021 is not applicable to past Assessment Years, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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