9911796707
TMI Blog2021 (9) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... any modification of the Executives implies certain amount of discretion and to be exercised with the aid of the legislative policy of the Act and cannot travel beyond it and run counter to it or certainly change the essential features, the identity, structure or the policy of the Act. Therefore, this legislative delegation which is exercised by the Central Government by notification to uphold the mechanism as prevailed prior to March, 2021 is not in conflict with any Act and notification by executive i.e. Ministry of Finance would be the part of legislative function. Under the circumstances by the notifications the operation of Section 148 of the Income Tax Act was extended, thereby deferment of Section 148A was done. It was done by the Ministry of Finance by way of conditional legislation in the peculiar circumstances which arose during the pandemic and lock down and Central Government can not be said to have encroached upon turf of Parliament. Notification would show that it was issued in exercise of power conferred under the Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 and time for issuance of notice under Section 148, the end date wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 is to read with Section 148-A of the Income Tax Act, 1961. He would submit that as per the amended Finance Act, 2021, which was published in the Gazette on 28th March, 2021, section 2 to 88 was notified to come into force on 1st day of April 2021 and accordingly the new Section 148A was inserted which prescribed that before issuing the notice under Section 148 of the Income Tax Act, the Assessing Officer was bound to conduct an enquiry giving an opportunity of hearing to the assessee with the prior approval of specified authority and show cause notice in detail was necessary specifying particular date for hearing. He would submit that since the operation of Section 148A came into being on 01st April, 2021, as such, the notice issued to the petitioner on 30.06.2021 under Section 148 of the Income Tax Act, without following the procedure under Section 148A without giving an opportunity of hearing would be illegal and contrary to the provisions of Section 148A and it cannot be sustained. It is further submitted that the respondents though have placed reliance on certain notification of Ministry of Finance but when the law has been enacted by the Parliament then in such case the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and show cause notice to be served and time was also prescribed. The question here in this case comes for consideration that whether with the promulgation of the Act on 1st day of April, 2021, whether the notice directly issued under Section 148 on 30.06.2021 is valid or not as bar of 148A was created by insertion of Section on 01st April, 2021. In order to get the answer, the reference is made to the notification dated 31.03.2021 (Annexure R-1) and 27.04.2021 (Annexure R-2). 6. For the reasons of lock down during pandemic as all the activities like filing of return, assessment were arrested, the parliament enacted the Taxation Others Laws (Relaxation Amendment of Certain Provisions) Act, 2020. In such Act any time limit specified or prescribed or notified under specified Act between 20th March 2020 to 31st December 2021 or other date thereafter, after December 2021 Central Government were given the power to notify. For the sake of brevity, the relevant part of relaxation of certain provisions of specified Act is reproduced herein below : 3. (1) Where, any time-limit has been specified in, or prescribed or notified under, the specified Act which falls during the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in conflict with any Act and notification by executive i.e. Ministry of Finance would be the part of legislative function. 8. In likewise situation the principle as laid down in case of A.K. Roy v. Union of India reported in AIR 1982 SC 710 , the Supreme Court held that the Constitution (Fourty-Fourth) Amendment Act, 1978, which conferred power on the Executive to bring the provisions of that Act into force did not suffer from excessive delegation of legislative power. The Court observed that the power to issue a notification for bringing into force the provisions of a constitutional amendment is not a constituent power, because it does not carry with it the power to amend the Constitution in any manner. Likewise in this case, the delegation to the executive with conferment of the power to the Central Government to specify the date by way of relaxation of time limit, the main purpose of the Finance Act is not defeated. Therefore, it would be a conditional legislation. As the legislature has declared the Act and has given the power to executive to extend the implementation by way of notification. The legislature has resorted to conditional legislation to give the power to exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under this sub-clause, the provisions of section 148, section 149 and section 151 of the Income-tax Act, as the case may be, as they stood as on the 31st day of March 2021, before the commencement of the Finance Act, 2021, shall apply. (b) the compliance of any action referred to in clause (b) of sub-section (1) of section 3 of the said Act relates to intimation of Aadhaar number to the prescribed authority under sub-section (2) of section 139AA of the Income-tax Act, the time-limit for compliance of such action shall stand extended to the 30th day of June, 2021. (B) where the specified Act is the Chapter VIII of the Finance Act, 2016 (28 of 2016) (hereinafter referred to as the Finance Act) and the completion of any action referred to in clause (a) of subsection (1) of section 3 of the said Act relates to sending an intimation under sub-section (1) of section 168 of the Finance Act,- (i) the 31st day of March, 2021 shall be the end date of the period during which the time limit, specified in, or prescribed or notified under, the Finance Act falls for the completion of such action; and (ii) the 30th day of April, 2021 shall be the end date to which the time-li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for completion of such action expires on the 30th day of April, 2021 due to its extension by the said notifications, such time limit shall further stand extended to the 30th day of June, 2021. Explanation .- For the removal of doubts, it is hereby clarified that for the purposes of issuance of notice under section 148 as per time-limit specified in section 149 or sanction under section 151 of the Income-tax Act, under this sub-clause, the provisions of section 148, section 149 and section 151 of the Income-tax Act, as the case may be, as they stood as on the 31st day of March 2021, before the commencement of the Finance Act, 2021, shall apply. (B) where the specified Act is the Chapter VIII of the Finance Act, 2016 (28 of 2016) (hereinafter referred to as the Finance Act) and the completion of any action, referred to in clause (a) of sub-section (1) of section 3 of the said Act, relates to sending an intimation under sub-section (1) of section 168 of the Finance Act, and the time limit for completion of such action expires on the 30th day of April, 2021 due to its extension by the said notifications, such time limit shall further stand extended to the 30th day of June ..... 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