Himachal Pradesh High Court
Between vs Union Of India on 21 June, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
.
ON THE 21st DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITIONS NO. 4375 OF 2021 &
CONNECTED MATTERS
1.CWP NO. 4375 OF 2021
BETWEEN:
HARISH CEMENT LIMITED BEING A COMPANY
AND HAVING ITS OFFICE AT JAGJIT COMPLEX,
NEAR NARESH CHOWK, SUNDER NAGAR ROAD
SUNDER NAGAR, MANDI
...PETITIONER
(BY MR. ANUP RATTAN, ADVOCATE)
AND
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2
1. INCOME TAX OFFICER WARD MANDI
HAVING HIS OFFICE AT AAYAKAR BHAWAN,
BEHULI MANDI, HIMACHAL PRADESH175027
2. PRINCIPAL COMMISSIONER OF INCOME TAX,
.
CHANDIGARH1,HAVING HIS OFFICE AT
AAYAKAR BHAWAN, SECTOR 17E,
CHANDIGARH.
3. THE CENTRAL BOARD OF DIRECT TAXES
DEPARTMENT OF REVENUE, MINISTRY OF
FINANCE, GOVERNMENT OF INDIA, NORTH
BLOCK, NEW DELHI110001.
4. UNION OF INDIA, THROUGH THE
SECRETARY, DEPARTMENT OF FINANCE,
MINISTRY OF FINANCE, GOVERNMENT OF
INDIA, NORTH BLOCK NEW DELHI
...RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE,
FOR INCOME TAX DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA.
2.CWP NO. 6886 OF 2021
BETWEEN
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3
DEEPAK AGRO INDUSTRIES, VILLAGE KALAGHAT,
TEHSIL PACHHAD, DISTRICT SIRMOUR, HIMACHAL
PRADESH THROUGH ITS PARTNER SH. AJAY SAHNI.
..PETITIONERS
.
(BY MR.VISHAL MOHAN, ADVOCATE)
VERSUS
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT. OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK NEW
DELHI.
2. INCOME TAX OFFICER, WARD (1) SHIMLA, INCOME
TAX OFFICE, RAILWAY BOARD BUILDING, THE MALL
SHIMLA.
3. PRINCIPAL, CITI, AAYAKAR BHAWAN, SECTOR17,
CHANDIGARH.
...RESPONDENTS.
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE,
FOR INCOME TAX DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI FOR
RESPONDENTUNION OF INDIA.
3.CWP NO. 8014 OF 2021
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4
BETWEEN
NANDINI THAPA, NANDINI COTTAGE, RAM
NAGAR, DHARAMSHALA, HIMACHAL PRADESH.
.
..PETITIONER
(BY MR. VISHAL MOHAN, ADVOCATE)
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENTOF REVENUE, NORTH BLOCK,
NEW DELHI.
2. INCOME TAX OFFICER, WARD
DHARAMSHALA, INCOME TAX OFFICE,
DHARAMSHALA, H.P.
3. PRCITI AAYKAR BHAWAN, SECOTR 17,
CHANDIGARH.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE,
FOR INCOME TAX DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI FOR
RESPONDENTUNION OF INDIA.
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4.CWP NO. 63 OF 2022
BETWEEN
ANIL MITTAL S/O SAT NARAIN MITTAL, AGE 54
.
YEARS, SHOW ROOM 16, LAJ COMPLEX BADDI
H.P.
...PETITIONER
(BY MR. SUNIL KUMAR MUKHI AND MR. VISHAL
MOHAN, ADVOCATES)
AND
OF
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY
FINANCE, GOVT OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK,
NEW DELHI.
2. INCOME TAX OFFICER, WARD PARWANOO
INCOME TAX OFFICE, PARWANOO, H.P.
3. PRCIT AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE,
FOR INCOME TAX DEPARTMENT)
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6
(BY MR. BALRAM SHARMA, ASGI FOR
RESPONDENTUNION OF INDIA.
5. CWP NO. 490 OF 2022
.
M/S TAPAN INDUSTRIES, SUSHANT, SOLAN BYE
PASS ROAD, KATHER, SOLAN, HIMACHAL
PRADESH THROUGH ITS PARTNER TAPAN
GOYAL.
..PETITIONER
BY MR. TEJMOHAN SINGH AND MR. VISHAL
MOHAN, ADVOCATES)
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK,
NEW DELHI.
2. INCOME TAX OFFICER, WARD1, SHIMLA,
RAILWAY BOARD BUILDING SHIMLA,
HIMACHAL PRADESH.
3. PRINCIPAL COMMISSIONER OF INCOME TAX
1, AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
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7
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE,
FOR INCOME TAX DEPARTMENT)
.
(BY MR. BALRAM SHARMA, ASGI FOR
RESPONDENTUNION OF INDIA.
6.CWP NO. 568 OF 2022
STURDY INDUSTRIES LIMITED 55, INDUSTRIAL
AREA, SECTOR1 PARWANOO, HIMACHAL
PRADESH,THROUGH ITS DIRECTOR SH.
RAMESH KUMAR GUPTA.
..PETITIONER
(BY MR. MISHAL MOHAN AND MR. ROHIT
KAURA, ADVOCATES)
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENTOF REVENUE, NORTH BLOCK,
NEW DELHI.
2. INCOME TAX OFFICER, PARWANOO, INCOME
TAX OFFICE, PARWANOO HIMACHAL PRADESH.
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3. PRINCIPAL COMMISISONER OF INCOME TAX
1, AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
.
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE,
FOR INCOME TAX DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA.
7.CWP NO. 759 OF 2022
BETWEEN
M/S BAWA DITTA MAL PARSHOTAM DASS,
V&PO JASSUR TEHSIL NURPUR, JASSUR H.P.
176201, THROUGH ITS PARTNER SH. PAWNESH
KUMAR.
..PETITIONER
(BY MR. VISHAL MOHAN, ADVOCATE)
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENTOF REVENUE, NORTH BLOCK,
NEW DELHI.
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2. DEPUTY COMMISSIONER OF INCOME TAX
(DCIT/ACIT) CENTRAL, SHIMLA, H.P.
3. PRINCIPAL CIT (CENTRAL) GURGAON AT
CHANDIGARH.
.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE,
FOR INCOME TAX DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI FOR
RESPONDENTUNION OF INDIA.
8.CWP No. 1323 of 2022
RAVI SHEEL BHUTANI AGED 63 YEARS S/O
SHRI S.K. BHUTANI, PROPRIETOR M/S
HIMACHAL GIFT EMPORIUM, UPPER BAZAR,
SOLAN, HIMACHAL PRADESH.
..PETITIONER
(BY MR. ABHIMANYU JHAMBA AND MR. SHIVAM
PRASHAR, ADVOCATES)
AND
1. INCOME TAX OFFICER, WARD 1 INCOME TAX
OFFICE, RAILWAY BOARD BUILDING, SHIMLA
HIMACHAL PRADESH173001.
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2. THE PRINCIPAL COMMISSIONER OF INCOME
TAX, CHANDIGARH1, CR BUILDING, HIMALAYA
MARG SECTOR17E, HIMALAYA MARG,
SECTOR 17E, CHANDIGARH160017
.
3. THE ASSISTANT COMMISSIONER OF INCOME
TAX, NATIONAL E ASSESSMENT CENTRE,
NATIONAL FACELESS ASSESSMENT CENTRE,
ROOM NO. 401, SECOND FLOOR, ERAMP,
JAWAHARLAL NEHRU STADIUM, DELHI110003.
4. CHAIRMAN CENTRAL BOARD OF DIRECT
TAXES, NORTH BLOCK NEW DELHI.
5. UNION OF INDIA THROUGH SECRETARY
MINISTRY OF FINANCE, NORTH BLOCK, NEW
DELHI.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE
FOR THE RESPONDENTSINCOME TAX
DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA)
9.CWP NO. 1065 OF 2022
BETWEEN
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11
BAL KRISHAN RAWAT R/O VILLAGE KHONI P.O.
HATKOTI, TEHSIL JUBBAL, SHIMLA, H.P.
..PETITIONER
.
(BY MR. VISHAL MOHAN AND MS. RITA TEJTA,
ADVOCATES)
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK
NEW DELHI.
2. INCOME TAX OFFICER, WARD1, SHIMLA,
RAILWAY BOARD BUILDING, SHIMLA, H.P.
3. PRINCIPAL COMMISSIONER ON INCOME TAX
I, AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE
FOR THE RESPONDENTSINCOME TAX
DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA)
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10.CWP NO. 1318 OF 2022
BETWEEN
POONAM AGGARWAL, AGED 56 YEARS W/O
.
D.K. AGGARWAL, PROPRIETOR M/S MAA BALA
SUNDRI TRADERS, MAJRA, PAONTA SAHIB,
SIRMOUR, HIMACHAL PRADESH173021.
..PETITIONER
(BY MR. ABHIMANYU JHAMBA AND MR. SHIVAM
PRASHAR, ADVOCATE)
AND
1. INCOME TAX OFFICER, INCOME TAX OFFICE
NAHANHIMACHAL PRADESH173001.
2. THE JOINT COMMISSIONER OF INCOME TAX,
SHIMLA RANGE, INCOME TAX OFFICE,
RAILWAY BOARD BUILDING, THE MALL
SHIMLA, HIMACHAL PRADESH171002.
3. THE ASSISTANT COMMISSIONER OF INCOME
TAX, NATIONAL E ASSESSMENT CENTRE,
NATIONAL FACELESS ASSESSMENT CENTRE,
ROOM NO. 401, SECOND FLOOR, E RAMP
JAWAHARLAL NEHRU STADIUM,DELHI110003
4. CHAIRMAN, CENTRAL BOARD OF DIRECT
TAXES, NORTH BLOCK, NEW DELHI.
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5. UNION OF INDIA, THROUGH SECRETARY
MINISTRY OF FINANCE, NORTH BLOCK, NEW
DELHI.
..RESPONDENTS)
.
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE
FOR THE RESPONDENTSINCOME TAX
DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA)
11.CWP NO. 1415 OF 2022
M/S GLITTER OVERSEAS, D237, 1ST FLOOR,
PHASE1, ASHOK VIHAR, NEW DELHI,
THROUGH ITS PARTNER SH. RAJAT MITTAL.
..PETITIONER
(BY MR. VISHAL MOHAN, ADVOCATE)
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK
NEW DELHI.
2. INCOME TAX OFFICER, WARD1, PARWANOO,
INCOME TAX OFFICE, PARWANOO,HIMACHAL
PRADESH, SHIMLA, H.P.
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3. PRINCIPAL COMMISSIONER ON INCOME TAX
I, AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
.
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE
FOR THE RESPONDENTSINCOME TAX
DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA)
12.CWP NO.1568 OF 2022
BETWEEN
SUPERCHEM INDUSTRIES, JAAMI WALA ROAD,
NEAR JAMBU KHAALA, BADRIPUR, PAONTA
SAHIB, HIMACHAL PRADESH 173025,
THROUGH ITS PARTNER SH.SATISH GUPTA.
..PETITIONER
(BY MR. VISHAL MOHAN AND MR. ROHIT
KAURA, ADVOCATES)
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK
NEW DELHI.
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2. INCOME TAX OFFICER, PARWANOO, INCOME
TAX OFFICE, PARWANOO, HIMACHAL
PRADESH, SHIMLA, H.P.
3. PRINCIPAL COMMISSIONER ON INCOME TAX
.
I, AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE
FOR THE RESPONDENTSINCOME TAX
DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA)
13.CWP NO. 1796 OF 2022
BETWEEN
DEVTA JAMLU RISHI VIKAS SAMITI, VILLAGE
MALANA, SUB TEHSIL BHUNTAR, DISTT.
KULLU, THROUGH ITS PRESIDENT SH.
BARESTU RAM, S/O SH. SHUKRU RAM, AGE 51
YEARS.
..PETITIONER
(BY MR. VISHAL MOHAN, ADVOCATE)
AND
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16
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK
NEW DELHI.
.
2. INCOME TAX OFFICER, WARDKULLU,
HIMACHAL PRADESH.
3. PRINCIPAL COMMISSIONER ON INCOME TAX
I, AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE
FOR THE RESPONDENTSINCOME TAX
DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA)
14. CWP NO. 1806 OF 2022
BETWEEN
M/S JOSHI ENTERPRISES, NAYA BAZAR,
THEOG, DISTRICT SHIMLA, THROUGH ITS
PARTNER SMT. SHAMA JOSHI, W/O SH.
VIRENDER JOSHI, AGE 56 YEARS.
..PETITIONER
(BY MR. VISHAL MOHAN, ADVOCATE)
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17
AND
1. UNION OF INDIA, THROUGH SECRETARY,
MINISTRY OF FINANCE, GOVT OF INDIA,
DEPARTMENT OF REVENUE, NORTH BLOCK
.
NEW DELHI.
2. INCOME TAX OFFICER, WARD1, SHIMLA,
INCOME TAX OFFICE, RAILWAY BOARD
BUILDING, HIMACHAL PRADESH, SHIMLA, H.P.
3. PRINCIPAL COMMISSIONER ON INCOME TAX
I, AAYKAR BHAWAN, SECTOR 17,
CHANDIGARH.
..RESPONDENTS
(BY MR. VINAY KUTHIALA, SENIOR ADVOCATE
WITH MS. VANDANA KUTHIALA, ADVOCATE
FOR THE RESPONDENTSINCOME TAX
DEPARTMENT)
(BY MR. BALRAM SHARMA, ASGI, FOR
RESPONDENTUNION OF INDIA)
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These petitions coming on for orders this
day, Hon'ble Justice Tarlok Singh Chauhan
delivered the following:
.
ORDER
Since all these petitions assail re assessment notice(s) issued under Section 148 of the Income Tax Act, (hereinafter referred to as "the Act", for short) after 1.4.2021, therefore these petitions were taken up together r for consideration and are being disposed of by a common judgment.
2. The common grievance in all these petitions is that reassessment notice issued under the erstwhile sections 148 to 151 of the Act is bad in law, as reassessment notices issued after 1.4.2021 are governed by the substituted sections 147 to 151 of the Income Tax Act, 1961 substituted by the Finance Act, 2021.
::: Downloaded on - 25/06/2022 20:01:53 :::CIS 193. It is not in dispute that the issue raised in these petitions is no longer resintegra in view of the judgment rendered by Hon'ble Supreme Court in .
"Union of India & others versus Ashish Aggarwal", Civil Appeal No. 3005 of 2022, decided on 4.5.2022, and connected matters. While dealing with the issue in question, the Hon'ble Supreme Court observed as under:
"6.
r to It cannot be disputed that by substitution of Sections 147 to 151 of the Income Tax Act(IT Act) by the Finance Act, 2021, radical and reformative changes are made governing the procedure for reassessment proceedings. Amended sections 147 to 149 and Section 151 of the IT Act prescribe the procedure governing initiation of reassessment proceedings. However, for several reasons, the same gave rise to numerous litigations and the reopening were challenged inter alia, on the grounds such as (1) no valid "reasons to believe" (2) no tangible/reliable material/information in possession of the assessing officer leading to formation of belief that income has escaped assessment, (3) no enquiry being conducted by the assessing officer prior to the issuance of notice; and reopening is based on change of opinion of the assessing ::: Downloaded on - 25/06/2022 20:01:53 :::CIS 20 officer and (4) lastly the mandatory procedure laid down by this Court in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer and ors; (2003) 1 SCC 72, has not been followed.
.
6.1 Further PreFinance Act, 2021, the reopening was permissible for a maximum period up to six years and in some cases beyond even six years leading to uncertainty for a considerable time. Therefore, parliament thought it fit to amend the Income Tax Act to simplify the tax administration, ease compliances and reduce litigation. Therefore, with a view to achieve the said object, by the Finance Act, 2021, sections 147 to 149 and Section 151 have been substituted.
6.2 Under the substituted provisions of the IT Act vide Finance Act, 2021, no notice under section 148 of the IT Act can be issued without following the procedure prescribed under Section 148A of the IT Act. Along with the notice under section 148 of the IT Act, the assessing officer (AO) is required to serve the order passed under section 148 of the IT Act, section 148 A of the IT Act is a new provision which is in the nature of a condition precedent. Introduction of section 148 A of the IT Act can thus be said to be a game changer with an aim to achive the ultimate object of simplifying the tax administration, ease compliance and reduce litigation.
::: Downloaded on - 25/06/2022 20:01:53 :::CIS 21 6.3 But prior to preFinance Act, 2021, while reopening an assessment, the procedure of giving the reasons for reopening and an opportunity to the assessee and the decision of the objectives were required to be followed as per .
the judgment of this Court in the case of GKN Driveshafts (India) Ltd., (supra).
6.4 However, by way of Section 148 A, the procedure has now been streamlined and simplified. It provides that before issuing any noticel under Section 148, the assessing officer shall (I) conduct any enquiry, if required with the approval of specified authority, with respect to the information which suggest that the income chargeable to tax has escaped assessment; (ii) provide an opportunity of being heard to the assessee, with the prior approval of specified authority; (iii) consider the reply of the assessee furnished,if any, in response to the show cause notice referred to in clause (b); and (iv) decide, on the basis of material available on record including reply of the assessee, as to whether or not it is a fit case to issue a notice under section 148 of the IT Act and (v) the AO is required to pass a specific order within the time stipulated.
6.5 Therefore, all safeguards are provided before notice under section 148 of the IT Act is issued. At every stage, the prior approval of the specified authority is required, even for conducting the enquiry as per section 148A(a). Only in a case where, the assessing officer is of the opinion that ::: Downloaded on - 25/06/2022 20:01:53 :::CIS 22 before any notice is issued under section 148A(b) and an opportunity is to be given to the assessee, there is a requirement of conducting any enquiry, the assessing officer may do so and conduct any enquiry. Thus if the .
assessing officer is of the opinion that any enquiry is required, the assessing officer can do so, however, with the prior approval of the specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment.
6.6 Substituted section 149 is the provision governing the time limit for issuance of notice under section 148 of the IT Act. The substituted section 149 of the IT Act has reduced the permissible time limit for issuance of such a notice to three years and only in exceptional cases ten years. It also provides further additional safeguards which were absent under the earlier regime preFinance Act, 2021.
7. Thus, the new provisions substituted by the Finance Act, 2021 being remedial and benevolent in nature and substituted with a specific aim and object to protect the rights and interest of the assessee as well as and the same being in public interest, the respective High Courts have rightly held that the benefit of new provisions shall be made available even in respect of the proceedings relating to past assessment years, provided section 148 notice has been issued on or after 1st April, 2021. We are in complete ::: Downloaded on - 25/06/2022 20:01:53 :::CIS 23 agreement with the view taken by the various High Courts in holding so."
4. Thereafter, Hon'ble Supreme Court took note of the fact that in view of quashing of reassessment notice .
of some of the High Courts, the same may result in no assessment proceedings at all, even if the same were permissible under the Finance Act, 2021 and as per the substituted Sections 147 to 151 of the Act. It then held that the revenue cannot be made remediless and the object and purpose of reassessment proceedings cannot be frustrated, as is evident from para8 of the judgment, which reads as under:
"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 extension of time vide various notifications, the Revenue issued the impugned notices under section 148 after the amendment was enforced w.e.f. 01.04.2021, under the unamended section 148. In our view the same ought not to have been issued under the unamended Act and ought to have been issued under the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021. There appears to be genuine non application of the amendments as the officers of the Revenue may have been under a bonafide belief that the amendments may not yet have been enforced. Therefore, we are of the opinion that some ::: Downloaded on - 25/06/2022 20:01:53 :::CIS 24 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."
5. It was in these circumstances that Hon'ble Supreme Court proceeded to modify the judgment/orders passed by 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 Finance Act, 2021 and treated to be show cause notices in terms of section 148A(b).
The respective assessing officers shall within thirty days from today provide to the assessees the information and material relied upon by the Revenue so that the assessees can reply to the notices within two weeks thereafter;
(ii) The requirement of conducting any enquiry with the prior approval of the specified authority under section 148A(a) be dispensed with as a onetime measure visàvis those notices which have been issued under Section 148 of the unamended Act from ::: Downloaded on - 25/06/2022 20:01:53 :::CIS 25 01.04.2021 till date, including those which have 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."
It is lastly clarified that the order being
6. passed by Hon'ble Supreme Court shall be applicable PAN INDIA and all judgments and orders passed by different High Courts on the issue under which similar notices where were issued after 1.4.2021, under Section 148 of the Act are set aside and thereafter the same shall be governed by the present order and shall be modified to the aforesaid extent.
::: Downloaded on - 25/06/2022 20:01:53 :::CIS 267. Accordingly, all these petitions are disposed of in terms of aforesaid modifications No. (i) to (v) quoted above.
.
8. However, it is made clear that if the Revenue after receipt of reply(s) to the notice(s) still proceeds to continue proceedings against the petitioner and if the petitioners or any of them is/are aggrieved, he/they would be at liberty to seek appropriate legal remedy, including approach this Court, in accordance with law. The parties shall bear their own costs. The pending application(s),if any, are also disposed of.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia,) Judge June 21, 2022 (KALPANA) ::: Downloaded on - 25/06/2022 20:01:53 :::CIS 27 .
::: Downloaded on - 25/06/2022 20:01:53 :::CIS