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TMI Blog2022 (5) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... t-No.3, for A.Y. 2014-15. (Annexure No. 2) (ii) Issue a Writ, Order or Direction in the nature of Certiorari quashing the notice u/s 144 of the Act, dated 13.01.2022, issued by Respondent No.4, for A.Y. 2014-15 to the Petitioner. (Annexure No. 4) (iii) Issues a Writ, Order or Direction in the nature of prohibition restraining the respondents from completing the reassessment proceeding under 148 of the Act against the Petitioner. (iv) Issue any other writ order or direction which this Hon'ble Court may deem fit and proper in the Circumstances of the case. (v) Award the costs of the petition to the petitioner. (vi) Issue a writ order or direction in the nature of certiorari quashing the impugned order u/s 147 read with Section 144B of the Act against the petitioner dated 31.03.2022 passed by National Faceless Assessment Centre, Delhi Respondent No. 4 (Annexure No. 13)" 3. It has been admitted by the learned counsel for the parties before us that the impugned notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the 'Act, 1961') for the assessment year 2014-15 was issued by the respondent no. 3 to the petitioner on 1.4.2021. The "reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has no application on facts of the present case, impugned notice under Section 148 of the Act, 1961 would be without jurisdiction and barred by limitation inasmuch as for the assessment year 2014-15, the limitation under the amended provisions of Section 148A and 149 of the Act, 1961 had expired on 31.3.2018 inasmuch as the allegation of evaded income is Rs. 2,63,324/- which has been provided to be read as Rs. 26,33,324/- by notice dated 17.3.2022 under Section 142(1) of the Act, 1961, which is much below Rs. 50 Lacs. 7. We have carefully considered the submissions of the learned counsels for the parties and perused the record of the writ petition, the judgment of Hon'ble Supreme Court in the case of Ashish Agarwal (supra) and Circular F.No 279/Misc./M-51/2022-ITJ, dated 11.05.2022 issued by the Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, ITJ Section, New Delhi. Section 147 of the Act, 1961 as it existed till 31.03.2021, empowers the Assessing Officer to assess or reassess or recompute the loss or depreciation allowance or any other allowance, as the case may be, for the concerned assessment year in the case of an assessee if he has reason to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day of April, 2012. 149. (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); (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 accounts or other documents or evidence which reveal that the income chargeable to tax, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more for that year: 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 such notice 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, as they stood immediately before the commencement of the Finance Act, 2021: Provided further that the provisions of this sub-section shall not apply in a case, where a notice under section 153A, or section 153C read with section 153A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the opinion that some leeway must be shown in that regard which the High Courts could have done so. Therefore, instead of quashing and setting aside the reassessment notices issued under the unamended provision of IT Act, the High Courts ought to have passed an order construing the notices issued under unamended Act/unamended provision of the IT Act as those deemed to have been issued under section 148A of the IT Act as per the new provision section 148A and the Revenue ought to have been permitted to proceed further with the reassessment proceedings as per the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021, subject to compliance of all the procedural requirements and the defences, which may be available to the assessee under the substituted provisions of sections 147 to 151 of the IT Act and which may be available under the Finance Act, 2021 and in law. Therefore, we propose to modify the judgments and orders passed by the respective High Courts as under: (i) The respective impugned section 148 notices issued to the respective assessees shall be deemed to have been issued under section 148A of the IT Act as substituted by the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 148 of the Act are set aside and shall be governed by the present order and shall stand modified to the aforesaid extent. The present order is passed in exercise of powers under Article 142 of the Constitution of India so as to avoid any further appeals by the Revenue on the very issue by challenging similar judgments and orders, with a view not to burden this Court with approximately 9000 appeals. We also observe that present order shall also govern the pending writ petitions, pending before various High Courts in which similar notices under Section 148 of the Act issued after 01.04.2021 are under challenge." 9. The judgment of Hon'ble Supreme Court under Article 142 of the Constitution of India, in the case of Ashish Agarwal (supra) has been explained for implementation/ clarified by Instruction No.01/2022 being F.No 279/Misc./M-51/2022-ITJ, dated 11.05.2022 issued by the Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, ITJ Section, New Delhi, in exercise of powers under Section 119 of the Act, 1961, which is reproduced below:- Instruction No. 01/2022 F. No 279/Misc./M-51/2022-ITJ Ministry of Finance Department of Revenue Central Board of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court in various paragraphs, it is clarified that the judgment applies to all cases where extended reassessment notices have been issued. This is irrespective of the fact whether such notices have been challenged or not. 6.0 Operation of the new section 149 of the Act to identify cases where fresh notice under section 148 of the Act can be issued: 6.1 With respect of operation of new section 149 of the Act, the following may be seen: * Hon'ble Supreme Court has held that the new law shall operate and all the defences available to assessees under section 149 of the new law and whatever rights are available to the Assessing Officer under the new law shall continue to be available. * Sub-section (I) of new section 149 of the Act as amended by the Finance Act, 2021 (before its amendment by the Finance Act, 2022) reads as under:- 149. (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): (b) if three years, but not more than ten years, have elapsed from the end of the relevant assessment year unless the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued in a case for AY 2013-14, AY 2014-15 and AY 2015-16, if the income escaping assessment, in that case for that year, amounts to or is likely to amount to less than fifty lakh rupees. Hence, in order to reduce the compliance burden of assessees, it is clarified that information and material may not be provided in a case for AY 2013-14, AY 2014-15 and AY 2015-16, if the income escaping assessment, in that case for that year, amounts to or is likely to amount to less than fifty lakh rupees. Separate instruction shall be issued regarding procedure for disposing these cases. 8.0 Procedure required to be followed by the Assessing Officers to comply with the Supreme Court judgment: 8.1 The procedure required to be followed by the Jurisdictional Assessing Officer/Assessing Officer, in compliance with the order of the Hon'ble Supreme Court, is as under: * The extended reassessment notices are deemed to be show cause notices under clause (b) of 148A of the Act in accordance with the judgment of Hon'ble Supreme Court. Therefore, all requirement of new law prior to that show cause notice shall be deemed to have been complied with. * The Assessing Officer shall exclude cases as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man, Members and all other officer in CBDT of the rank of Under Secretary and above. 2. All Pr. Chief Commissioner of Income Tax and all Directors General of Income tax with a request to bring to the attention of all officers. 3. ADG(PR. P&P), Mayur Bhawan, New Delhi for printing in the quarterly Tax Bulletin and for circulation as per usual mailing list. 4. The Comptroller and Auditors General of india. 5. ADG (Vigilance), Mayur Bhawan, New Delhi. 6. Joint Secretary & Legal Advisor, Ministry of Law & Justice, New Delhi. 7. All Directorates of Income-tax, New Delhi and Pr. DGIT (NADT), Nagpur. 8. ITCC (3 copies). 9. ADG (System)-4, for uploading on the Department's website. 10. Data Base Cell for uploading or irsofficeronline.gov.in. 11. njrs [email protected] for uploading on NJRS. 12. Hindi Cell for translation. 13. Guard file." 10. Learned Additional Solicitor General of India has made a statement before us, as noted in paragraph-5 above, that as per Clause-7.1 of the Board's circular dated 11.05.2022, the notices under Section 148 relating to the Assessment Years 2013-14, 2014-15 and 2015-16, shall not attract the judgment of Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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