TMI Blog2022 (5) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 149, then proceedings under the amended provisions cannot be initiated. The impugned notice under Section 148 of the Act, 1961 issued on 01.04.2021 for the Assessment Year 2014-15 and the impugned notice dated 13.01.2022 under Section 144 of the Act, 1961 and the reassessment order dated 13.01.2022 under Section 147 read with Section 144B of the Act, 1961 for the Assessment Year 2014-15 passed by the respondent No.4 are hereby quashed. The writ petition is allowed. - Writ Tax No. - 347 of 2022 - - - Dated:- 17-5-2022 - Hon'ble Surya Prakash Kesarwani And Hon'ble Jayant Banerji JJ. For the Petitioner : Ankur Agarwal For the Respondent : A.S.G.I.,Anant Kumar Tiwari,Gaurav Mahajan ORDER 1. Heard Shri Ankur Agarwal, learned counsel for the petitioner, Shri S.P. Singh, learned Additional Solicitor General of India assisted by Shri Krishna Agarwal, learned Senior Standing Counsel for the respondent/Income Tax Department and Shri Anant Kumar Tiwari, learned Central Government Standing Counsel. 2. With the consent of the learned counsel for the parties, this writ petition is being finally heard without calling for a counter affidavit inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as notices under Section 148A of the Act, 1961 as substituted by the Finance Act, 2021. He draws out attention to paragraph 27 of the aforesaid judgement. He placed before us copy of Instruction being F.No 279/Misc./M-51/2022-ITJ, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, ITJ Section dated 11.5.2022, invited our attention to paragraph 7.1 of the aforesaid Instruction and stated that the notices under Section 148 relating to assessment years 2013-14, 2014-15 and 2015-16 shall not attract the judgement of Hon'ble Supreme Court in the case of Ashish Agarwal (supra). Lastly, Shri S.P. Singh submits that since the notice has been issued on 1.4.2021 for the assessment year 2014-15, therefore, it shall be covered by a Division Bench's judgement of this Court in the case of Daujee Abhushan Bhandar Pvt. Ltd. Vs. Union of India and 2 others (Writ Tax No. 78 of 2022) decided on 10.3.2022. 6. Learned counsel for the petitioner draws our attention to paragraphs 23 and 25 of the judgement of the Hon'ble Supreme Court in the case of Ashish Agarwal (supra) and submits that the impugned notice under Section 148 of the Act, 1961 issued by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant assessment year,- (a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) or clause (c); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year; (c) if four years, but not more than sixteen years, have elapsed from the end of the relevant assessment year unless the income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment. Explanation.-In determining income chargeable to tax which has escaped assessment for the purposes of this sub-section, the provisions of Explanation 2 of section 147 shall apply as they apply for the purposes of that section. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151. (3) If the person on whom a notice under section 148 is to be served is a person treated as the agent of a non-resident under section 163 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preceding proviso, the period of limitation available to the Assessing Officer for passing an order under clause (d) of section 148A is less than seven days, such remaining period shall be extended to seven days and the period of limitation in sub-section (1) shall be deemed to be extended accordingly. Explanation.- For the purposes of clause (b) of this sub-section, asset shall include immovable property, being land or building or both, share and securities, loans and advances, deposits in bank account. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151. 8. In the case of Ashish Agarwal (supra), Hon ble Supreme Court held in Paras 23, 25 and 27, as under:- 23.However, at the same time, the judgments of the several High Courts would result in no reassessment proceedings at all, even if the same are permissible under the Finance Act, 2021 and as per substituted sections 147 to 151 of the IT Act. The Revenue cannot be made remediless and the object and purpose of reassessment proceedings cannot be frustrated. It is true that due to a bonafide mistake and in view of subsequent exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been quashed by the High Courts; (iii) The assessing officers shall thereafter pass an order in terms of section 148A(d) after following the due procedure as required under section 148A(b) in respect of each of the concerned assessees; (iv) All the defences which may be available to the assessee under section 149 and/or which may be available under the Finance Act, 2021 and in law and whatever rights are available to the Assessing Officer under the Finance Act, 2021 are kept open and/or shall continue to be available and; (v) The present order shall substitute/modify respective judgments and orders passed by the respective High Courts quashing the similar notices issued under unamended section 148 of the IT Act irrespective of whether they have been assailed before this Court or not. 25. Therefore, we have proposed to pass the present order with a view avoiding filing of further appeals before this Court and burden this Court with approximately 9000 appeals against the similar judgments and orders passed by the various High Courts, the particulars of some of which are referred to hereinabove. We have also proposed to pass the aforesaid order in exercise of our p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the time extended by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [hereinafter referred to as TOLA ] and various notifications issued thereunder (these reassessment notices hereinafter referred to as extended reassessment notices ). 2. These extended reassessment notices were issued by the Assessing Officers under the provision of section 148 of the Income-tax Act, 1961 (hereinafter referred to as the Act ) following the procedure prescribed under various sections pertaining to reassessment namely sections 147 to 151, as they existed prior to their amendment by the Finance Act, 2021 (hereinafter referred to as old law ). With effect from l April 2021, the old law has been substituted with new sections 147-151 (hereinafter referred to as the new law ). 3. Hon ble Supreme Court has held that these extended reassessment notices issued under the old law shall be deemed to be the show cause notices issued under clause (b) of section 148A of the new law and has directed Assessing Officers to follow the procedure with respect to such notices. It has also held that all the defences available to assessees under section 149 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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: Hon ble Supreme Court has upheld the views of High Courts that the benefit of new law shall be made available even in respect of proceedings relating to past assessment years. Decision of Hon ble Supreme Court read with the time extension provided by TOLA will allow extended reassessment notices to travel back in time to their original date when such notices were to be issued and then new section 149 of the Act is to be applied at that point. 6.2 Based on above, the extended reassessment notices are to be dealt with as under: (i) AY 2013-14, AY 2014-15 and AY 2015-16: Fresh notice under section 148 of the Act can be issued in these cases, with the approval of the specified authority, only if the case falls under clause (b) of sub-section (1) of section 149 as amended by the Finance Act, 2021 and reproduced in paragraph 6.1 above. Specified authority under section 151 of the new law in this case shall be the authority prescribed under clause (ii) of that section. (ii) AY 16-17, AY 17-18: Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant assessment year. The time period of two weeks shall be counted from the date of last communication of information and material by the Assessing Officer to the assessee. In view of the observation of Hon ble Supreme Court that all the defences of the new law are available to the assessee, if assessee makes a request by making an application that more time be given to him to file reply to the show cause notice, then such a request shall be considered by the Assessing Officer on merit and time may be extended by the Assessing Officer as provided in clause (b) of new section 148A of the Act. After receiving the reply, the Assessing Officer shall decide on the basis of material available on record including reply of the assessee, whether or not it is a fit case to issue a notice under section 148 of the Act. The Assessing Officer is required to pass an order under clause (d) of section 148A of the Act to that effect, with the prior approval of the specified authority of the new law. This order is required to be passed within one month from the end of the month in which the reply is received by him from the assessee. In case no such reply is furnished by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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