TMI Blog2022 (10) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 148 of the Act under the pre-amended scheme only. The argument that since pre amended provision contained in Section 149 of the Act, permitted the authorities to reopen and issue notice under Section 148 of the Act, therefore, even after amendment of provisions of Section 149 of the Act, repealed provisions could be taken recourse to and in that case, provisions of Clause (a) sub-section (1) of Section 149 of the Act would not apply, prima facie appears to be against the legislative intention. In respect of income below Rs.50 lacs which is alleged to have escaped assessment, the new legislative regime is that notice under Section 149 of the Act shall not be issued if there is a bar as engrafled under Clause (a) thereof. It is only when the amount exceeds Rs.50 lacs, the provisions of Clause (b) stand attracted, subject to the limitation prescribed therein. Reliance placed on judgments of various High Courts, at this stage, we find to be distinguishable because none of those are cases where the income alleged to have escaped assessment was found to be less than Rs.50 lacs. The final order and the interim orders in certain cases have been passed on the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 where the income, which is alleged to have escaped assessment, is less than Rs.50 lacs, this Court has protected those petitioners by interim order, therefore, she may also be protected. Learned counsel appearing for Respondent No.1 2, however, opposes the prayer and submits that on the aspect of stay, he may be heard. Therefore, though in number of cases interim orders have been passed by us, we have allowed both the parties to make their detailed submissions on the application for stay. Learned counsel for the petitioner would argue that in the present case, notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) was initially issued on 19.04.2021 without drawing any proceedings under Section 148A of the Act. Subsequently, in view of the order dated 04.05.2022 passed by the Hon ble Supreme Court in the case of Union of India Others Vs. Ashish Agarwal (Civil Appeal No. 3005/2022 and batch of appeals), the notice was treated as one under Section 148-A of the Act and the proceedings culminated in passing of an order under Section 148A(d) of the Act on 26.07.2022 and simultaneously notice under Section 148 of the Act has been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f proceedings under Section 148 of the Act within the period of limitation even under the newly amended Section 149 of the Act. Therefore, in any case, the issuance of notice under Section 148 of the Act is within the period of limitation prescribed under the old Act and if the proceedings could be initiated under the old Act, the bar under Section 149, subsection 1(b) of the Act would not come in the way and even if three years have elapsed since the relevant assessment year, as provided under the amended Section 149 of the Act, the proceedings would continue. In support of his submissions, he would rely upon the order passed by the hon ble Supreme Court in the case of Union of India Others Vs. Ashish Agarwal (supra) and orders passed by the various High Courts. Learned counsel relied upon order dated 09.09.2022 passed by High Court of Delhi at New Delhi in the case of Touchstone Holdings Pvt. Ltd. Versus Income Tax Officer, Delhi and Others (WPC 3102/2022), order dated 27.09.2022 passed by High Court of Orissa : Cuttack in the case of Stewart Science College Anr. Versus Income Tax Officer Ors., order dated 02.09.2022 passed by the High Court of Madhya Pradesh At Indore in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther provided that the conduct of any inquiry, if required, with the prior approval of specific authority under Section 148A(b) is dispensed with as a one time measure vis- -vis those notices which have been issued under Section 148 of the unamended Act from 01.04.2021 till the date of the passing of the order, including those which have been passed by the High Courts. It was further observed that holding any inquiry with the prior approval of specific authority is not mandatory, but it is for the concerned Assessing Officers to hold any inquiry, if required. It was further directed that the Assessing Officer shall thereafter pass orders in terms of Section 148A(d) in respect of each of the concerned assessee and thereafter after following the procedure as required under Section 148A of the Act may issue notices under Section 148 of the Act (as substituted). Importantly, it was made clear that all the grounds which may be available to the assessee including those available under Section 149 of the Act and all rights and contentions which may be available to the concerned assessee and revenue under the Finance Act, 2021 and in law, shall continue. The notice under Section 148 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the face of the provision, it is clear that if three years have elapsed from the end of the relevant assessment year, unless the case falls under the clause-(b) i.e., the alleged income involved exceeds Rs.50 lacs, notice under Section 148 of the Act could not be issued. This essentially is a matter of jurisdiction. There is no quarrel with the legal position existing and in force prior to 01.04.2021 that under the unamended provisions contained in Section 149, sub-section (1)(b) of the Act, proceedings under Section 148 of the Act could be initiated by issuance of notice even if four years had elapsed but not more than six years elapsed from the end of the relevant assessment year in cases where the income chargeable to tax which has escaped assessment amounts to or is likely to amount to Rupees One lac or more for that year. However the unamended provisions allowed the authority to reopen assessment by issuing notice under Section 148 of the Act under the preamended scheme only. Once the provision itself has been amended and newly amended provision contained in Section 149, sub-section 1(a), of the Act bars reopening under Section 148 of the Act if three years have ela ..... X X X X Extracts X X X X X X X X Extracts X X X X
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