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TMI Blog2021 (10) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ime barred on 20.03.2020, upto the date 30.06.2021. Correspondingly, by delegated legislation incorporated by the Central Government, it may extend that time limit. That time limit alone stood extended upto 30 June, 2021. Additional Solicitor General of India may not be entirely correct in stating that no extension of time was granted beyond 30.06.2021. Vide Notification No. 3814 dated 17.09.2021, issued under section 3(1) of the Enabling Act, further extension of time has been granted till 31.03.2022. In absence of any specific delegation made, to allow the delegate of the Parliament, to indefinitely extend such limitation, would be to allow the validity of an enacted law i.e. the Finance Act, 2021 to be defeated by a purely colourable exercise of power, by the delegate of the Parliament. Section 3(1) of the Enabling Act does not itself speak of reassessment proceeding or of Section 147 or Section 148 of the Act as it existed prior to 01.04.2021. It only provides a general relaxation of limitation granted on account of general hardship existing upon the spread of pandemic COVID -19. After enforcement of the Finance Act, 2021, it applies to the substituted provisions and not the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions substituted, there is no room to reach a conclusion as to conflict of laws. It was for the assessing authority to act according to the law as existed on and after 1.4.2021. If the rule of limitation permitted, it could initiate, reassessment proceedings in accordance with the new law, after making adequate compliance of the same. That not done, the reassessment proceedings initiated against the petitioners are without jurisdiction. It would be incorrect to look at the delegation legislation i.e. Notification dated 31.03.2021 issued under the Enabling Act, to interpret the principal legislation made by Parliament, being the Finance Act, 2021. A delegated legislation can never overreach any Act of the principal legislature. Second, it would be over simplistic to ignore the provisions of, either the Enabling Act or the Finance Act, 2021 and to read and interpret the provisions of Finance Act, 2021 as inoperative in view of the fact circumstances arising from the spread of the pandemic COVID-19. Practicality of life de hors statutory provisions, may never be a good guiding principle to interpret any taxation law. In absence of any specific clause in Finance Act, 2021, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have crept in the order dated 30.9.2021. Thus, the following corrections are made in the order dated 30.9.2021: (i) In the third line of paragraph no. 36, the words "Section 4 and 6 read with Section 292" be read as "Section 4 and 3 read with Section 294". (ii) In the fourth line of paragraph no. 41, words after the date 31.12.2020 - ", upto 30.06.2021" be deleted. (iii) In the second line of paragraph no. 70, the date "20.03.2021" be corrected to read "20.03.2020". The correction application is allowed. Accordingly, the order dated 30.09.2021 as corrected reads as below: "Heard Sri Rakesh Ranjan Agarwal, learned Senior Advocate, assisted by Sri Suyash Agarwal, Sri Shambhu Chopra, learned Senior Advocate, assisted by Ms. Mahima Jaiswal, Sri Abhinav Mehrotra, Sri Akhilesh Kumar along with Sri Ashish Bansal, Sri Divyanshu Agarwal along with Sri Ankit Saran, Sri Deepak Kapoor along with Sri Shubham Agarwal, Sri V.K. Sabarwal and Shri R.B. Gupta along with Sri Rishi Raj Kapoor, Sri Shakeel Ahmad, Sri Parv Agarwal, Sri Salil Kapoor along with Sri Anuj Srivastava & Ms Soumya Singh alongwith Sri Satya Vrat Mehrotra, Sri Ankur Agarwal, Sri Krishna Deo Vyas, Sri Ashok Shankar Bhatnag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2021 29.12.2017 2. 524-2021 ASHOK KUMAR AGARWAL 2017-18 09.04.2021 08.03.2018 3. 531-2021 M/S ARIHANT PUBLICATIONS (INDIA) LTD. 2015-16 30.06.2021 30.09.2015 4. 540-2021 BAJAJ STEELS AND INDUSTRIES LTD. 2017-18 29.06.2021 07.11.2017 5. 549-2021 BAJAJ STEELS AND INDUSTRIES LTD. 2016-17 29.06.2021 17.10.2016 6. 554-2021 SMT. NEERAJ AGARWAL 2016-17 09.04.2021 21.03.20217 7. 559-2021 FIROZ AHMED ZAHIR AHMED SHAIKH 2015-16 29.06.2021 20.07.2015 8. 561-2021 M/S JUBILANT PHARMOVA LIMITED 2015-16 30.06.2021 29.11.2015 9. 562-2021 SHOBHIT SHUKLA 2013-14 30.06.2021 -- 10. 564-2021 VARDHMAN INDUSTRIES 2015-16 16.04.2021 25.09.2015 11. 565-2021 YOGESH JAISWAL 2017-18 25.05.2021 29.10.2017 12. 567-2021 NEERAJ PRAKASH 2013-14 30.06.2021 31.12.2015 13. 573-2021 PARVEEN QURESHI 2016-17 30.06.2021 15.06.2017 14. 592-2021 SARLA JAIN 2013-14 26.04.2021 31.03.2014 15. 612-2021 J.M. HOUSING LIMITED 2016-17 30.06.2021 15.10.2016 16. 613-2021 J.M. HOUSING LIMITED 2017-18 30.06.2021 27.01.2018 17. 614-2021 GSR MOVIES 2013-14 28.06.2021 28.09.2013 18. 615-2021 PAWANPUTRA HOTELS AND RESORTS PVT. LTD. 2013- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATES 2013-14 23.04.2021 31.03.2014 55. 757-2021 JIVAN KUMAR AGARWAL 2013-14 27.04.2021 21.10.2013 56. 763-2021 KAPIL SHARMA 2013-14 25.06.2021 18.07.2013 57. 764-2021 KAPIL SHARMA 2014-15 25.06.2021 03.02.2015 58. 765-2021 NEERU GUPTA 2013-14 06.04.2021 27.09.2013 59. 769-2021 NEERU GUPTA 2015-16 01.04.2021 27.03.2016 60. 775-2021 MUKESH PAL SINGH 2014-15 30.06.2021 14.03.2015 61. 776-2021 SHIV SHAKTI CONSTRUCTIONS 2013-14 30.06.2021 21.10.2013 62. 777-2021 MUKESH KUMAR 2013-14 30.06.2021 01.02.2014 63. 778-2021 EXOTIC BUILDMART PVT. LTD 2014-15 30.06.2021 25.03.2015 64. 779-2021 KIRTI SINGH 2014-15 30.06.2021 14.03.2015 65. 780-2021 SUSHIL JOSHI 2013-14 30.06.2021 31.03.2014 66. 781-2021 SHIV SHAKTI CONSTRUCTIONS 2014-15 30.06.2021 29.11.2014 67. 782-2021 MUKESH KUMAR 2014-15 30.06.2021 14.03.2015 68. 795-2021 AMBIKA ENCLAVE PRIVATE LIMITED 2015-16 28.06.2021 30.03.2016 69. 796-2021 KUSUM ENCLAVE PRIVATE LIMITED 2015-16 28.06.2021 20.09.2015 70. 797-2021 AMBIKA ENCLAVE PRIVATE LIMITED 2017-18 28.06.2021 27.11.2017 71. 801-2021 KANTA DEVI 2015-16 10.06.2021 19.03.2017 72. 810- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years." 8. Around March, 2020, the pandemic COVID-19 reached our shores and spread all over country. It led to enforcement of a lockdown. Even thereafter, life is yet to normalise. The pandemic severely impacted the normal functioning of the Government as also all other institutions and it obstructed the normal life of the citizens as well. In such facts, judicial intervention had been made by the Supreme Court as also by this Court, to relax the rules of limitation - to institute various proceedings. The Central Government also recognized that difficulty and promulgated the Ordinance No. 2 of 2020 dated 31.03.2020 titled Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020 (hereinafter referred to as the 'Ordinance'). Relevant to our discussion, the introductory text of the said Ordinance together with provisions of Sections 1, 2 and 3 of the Ordinance are quoted below: "TAXATION AND OTHER LAWS (RELAXATION OF CERTAIN PRO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified Act which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020, or such other date after the 29th day of June, 2020, as the Central Government may, by notification, specify in this behalf, for the completion or compliance of such action as- (a) completion of any proceeding or passing of any order or 'issuance of any notice', intimation, notification, sanction or approval or such other action, by whatever name called, by any authority, commission or tribunal, by whatever name called, under the provisions of the specified Act; or b) filing of any appeal, reply or application or furnishing of any report, document, return statement or such other record, by whatever name called, under the provisions of the specified Act; or (c) in case where the specified Act is the Income-tax Act, 1961 (43 of 1961), - (i) making of investment, deposit, payment, acquisition, purchase, construction or such other action, by whatever name called, for the purposes of claiming any deduction, exemption or allowance under the provisions contained in - (I) sections 54 to 54GB or under any provisions of Chapter VI-A under the heading "B.-Deductions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to also quote the provisions of Chapter III of the Ordinance - containing the amendments made to the Act. It reads: "CHAPTER III AMENDMENT TO THE INCOME-TAX ACT, 1961 Amendment of sections 10 and 80G of Act 43 of 1961 4. In the Income-tax Act, 1961, with effect from the 1st day of April, 2020 (43 of 1961), - (i) in section 10, in clause (23C), in sub-clause (i), after the word "Fund", the words and brackets "or the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES FUND)" shall be inserted; (ii) in section 80G, in sub-section (2), in clause (a), in sub-clause (iiia), after the word "fund", the words and brackets "or the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES FUND)" shall be inserted." 9. Acting in exercise of powers vested under the Ordinance, the Central Government then issued Notification Nos. 35 of 2020, 39 of 2020 and 56 of 2020, dated 24.06.2020, 29.06.2020 and 29.07.2020, respectively. Briefly, by those Notifications, general time extension was granted under the Act for certain purposes. Since, the present dispute does not arise in the context of those Notifications, no usefu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specify in this behalf, for the completion or compliance of such action as- (a) completion of any proceeding or passing of any order or issuance of any notice, intimation, notification, sanction or approval, or such other action, by whatever name called, by any authority, commission or tribunal, by whatever name called, under the provisions of the specified Act; or (b) filing of any appeal, reply or application or furnishing of any report, document, return or statement or such other record, by whatever name called, under the provisions of the specified Act; or (c) in case where the specified Act is the Income-tax Act, 1961,- (i) making of investment, deposit, payment, acquisition, purchase, construction or such other action, by whatever name called, for the purposes of claiming any deduction, exemption or allowance under the provisions contained in- (I) sections 54 to 54GB, or under any provisions of Chapter VI-A under the heading "B.-Deductions in respect of certain payments" thereof; or (II) such other provisions of that Act, subject to fulfilment of such conditions, as the Central Government may, by notification, specify; or (ii) beginning of manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of February or March, 2020, or for the quarter ending on the 31st day of March, 2020, as the case may be, the provision of this sub-section shall have the effect as if for the figures, letters and words "31st day of March, 2021", the figures, letters and words "31st day of July, 2020" had been substituted; (iv) furnishing of certificate under section 203 of that Act in respect of deduction or payment of tax under section 192 thereof for the financial year commencing on the 1st day of April, 2019, the provision of this sub-section shall have the effect as if for the figures, letters and words "31st day of March, 2021", the figures, letters and words "15th day of August, 2020" had been substituted; (v) sections 54 to 54GB of that Act, referred to in item (I) of subclause (i) of clause (c), or sub-clause (ii) of the said clause, the provision of this sub-section shall have the effect as if - (a) for the figures, letters and words "31st day of December, 2020", the figures, letters and words "29th day of September, 2020" had been substituted for the time-limit for the completion or compliance; and (b) for the figures, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the figures, letters and words "31st day of December, 2020" had been substituted for making such completion or compliance. (2) Where any due date has been specified in, or prescribed or notified under the specified Act for payment of any amount towards tax or levy, by whatever name called, which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020 or such other date after the 29th day of June, 2020 as the Central Government may, by notification, specify in this behalf, and if such amount has not been paid within such date, but has been paid on or before the 30th day of June, 2020, or such other date after the 30th day of June, 2020, as the Central Government may, by notification, specify in this behalf, then, notwithstanding anything contained in the specified Act,- (a) the rate of interest payable, if any, in respect of such amount for the period of delay shall not exceed three-fourth per cent. for every month or part thereof; (b) no penalty shall be levied and no prosecution shall be sanctioned in respect of such amount for the period of delay. Explanation.-For the purposes of this sub-section, "the period of delay" m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 39. Insertion of Section 144A 01.04.2021 40. Insertion of Section 144C(14A) 01.11.2020 41. Insertion of Section 151A 01.11.2020 42. Insertion of Section 157A 01.11.2020 43. Insertion of Section 196D(1) 01.11.2020 44. Insertion of Section 197B 14.05.2020 45. Insertion of Section 206C(10) 14.05.2020 46. Insertion of Section 231 01.11.2020 47. Substitution in Section 253(1)(c) 01.06.2020 & 01.04.2021 48. Insertion of Section 253(8), (9) and (10) 01.11.2020 49. Section 263(1) 01.11.2020 50. Section 264(1, 2, 3 and 4) 01.11.2020 51. Insertion of Section 264A & 264B 01.11.2020 52. Omission of Section 271K 01.06.2020 53. Insertion of Section 271K 01.04.2021 54. Substitution in Section 274(2A)(a) 01.04.2021 55. Insertion of Section 279 (4, 5 and 6) 01.11.2020 56. Insertion of Section 293D 01.11.2020 12. On 29.10.2020, Notification No. 88 of 2020 was issued by the Central Government for the purposes of extension of time limits stipulated under Section 139 of the Act. For ready reference, the said provision reads as below: "MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF DIRECT TAXES) NOTIFICATION New Delhi, the 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment hereby specifies, for the completion or compliance of action referred to in- (A) clause (a) of sub-section (1) of section 3 of the Act, - (i) the 30th 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 specified Act falls for the completion or compliance of such action as specified under the said subsection; and (ii) the 31st day of March, 2021 shall be the end date to which the time limit for completion or compliance of such action shall stand extended: Provided that where the specified Act is the Direct Tax Vivad Se Vishwas Act, 2020 (3 of 2020), the provision of this clause shall have the effect as if- (a) for the figures, letters and words "30th day of March, 2021", the figures, letters and words "30th day of January, 2021" had been substituted; and (b) for the figures, letters and words "31st day of March, 2021", the figures, letters and words "31st day of January, 2021" had been substituted: Provided further that where the specified Act is the Income-tax Act, 1961 (43 of 1961) and completion or compliance of action referred to in clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember, 2020, published in the Gazette of India, Extraordinary, Part-II, Section 3, Subsection (i), vide number S.O. 4805(E), dated the 31st December, 2020 (hereinafter referred to as the said notification), the Central Government hereby specifics, for the purpose of sub-section (1) of section 3 of the said Act, that - (A) where the specified Act is the Income-tax Act, 1961 (43 of 1961) (hereinafter referred to as the Income-tax Act) and the completion of any action, as referred to in clause (a) of sub-section (1) of section 3 of the said Act, relates to passing of any order- (a) for imposition of penalty under Chapter XXI of the Income-tax Act, - (i) the 29th day of June, 2021 shall be the end date of the period during which the time limit specified in or prescribed or notified under the Income-tax Act falls, for the completion of such action; and (ii) the 30th day of June, 2021 shall be the end date to which the time limit for completion of such action shall stand extended; (b) for assessment or reassessment under the Income-tax Act, and the time limit for completion of such action under section 153 or section 153B thereof,- (i) expires on the 31st day of March, 2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 151 of the Income-tax 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 Income-tax 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-limit for the completion of such action shall stand extended. 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) the compliance of any action referred to in clause (b) of subsection (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 speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shall further stand extended to the 30th day of June, 2021; (b) the completion of any action, referred to in clause (a) of subsection (1) of section 3 of the said Act, relates to passing of an order under sub-section (13) of section 144C of the Income-tax Act or issuance of notice under section 148 as per time-limit specified in section 149 or sanction under section 151 of the Income-tax 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y:- 148. Issue of notice where income has escaped assessment.-Before making the assessment, reassessment or recomputation under section 147, and subject to the provisions of section 148A, the Assessing Officer shall serve on the assessee a notice, along with a copy of the order passed, if required, under clause (d) of section 148A, requiring him to furnish within such period, as may be specified in such notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139: Provided that no notice under this section shall be issued unless there is information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant assessment year and the Assessing Officer has obtained prior approval of the specified authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes of this section, specified authority means the specified authority referred to in section 151. Insertion of new section 148A. 42. After section 148 of the Income-tax Act, the following section shall be inserted, namely:- "148A. Conducting inquiry, providing opportunity before issue of notice under section 148.- The Assessing Officer shall, before issuing any notice under section 148,- (a) conduct any enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment; (b) provide an opportunity of being heard to the assessee, with the prior approval of specified authority, by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, is required to be issued in relation to a search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, on or before the 31st day of March, 2021: Provided also that for the purposes of computing the period of limitation as per this section, the time or extended time allowed to the assessee, as per show-cause notice issued under clause (b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act stood repealed and replaced by the above noted provisions. The entire statutory scheme of initiating, inquiring, conducting, and concluding the reassessment proceedings underwent a sea change. The act of substitution of the old provision obliterated from the statute book the pre-existing provisions pertaining to reassessment under the Act. The unamended provision became dead and unenforceable, by that operation of law. Since the Enabling Act only sought to enlarge limitation with respect to the pre-existing provisions, it could not, and it did not resurrect the pre-existing provisions that were already dead. In short, it has been submitted, the procedural amendments cannot recreate a non-existing substantive law. He has placed reliance on a decision of the Supreme Court in Government of India & Ors. Vs. Indian Tobacco Association, (2005) 7 SCC 396, wherein it has been observed as follows: "15. The word "substitute" ordinarily would mean "to put (one) in place of another"; or "to replace". In Black's Law Dictionary, Fifth Edition, at page 1281, the word "substitute" has been defined to mean "To put in the place of another person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise. Insofar as present case is concerned, as discussed hereinafter, the legislative intent was also to give effect to the amended provision even in respect of those incumbents who were in service as on September 01, 2016." 21. Reference has also been made to another decision of the Supreme Court in PTC India Limited Vs. Central Electricity Regulatory Commissioner, (2010) 4 SCC 603, wherein again it was observed as below: "... Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. Substitution is a combination of repeal and fresh enactment." 22. Last, reference has been made to a decision of the Delhi High Court, applying the same principle, in C.B. Richards Ellis Mauritius Ltd. Vs. Assistant Director of Income-tax, (2012) 208 Taxman 322 (Delhi). 23. Second, it has been submitted, the Enabling Act was enacted solely to extend the limitation under the pre-existing provisions of the Act, as they stood prior to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State Government has been empowered to make such Rules as are necessary for the purpose of carrying out the purposes of the Act. We have already noticed that the object and the scheme of the Act do not contemplate the State authorities being empowered to recompute the agricultural income contrary to the computation made by the Central Officers, nor do the subjects specified in sub-sections 2(a) to (m) of Section 50 provide for making such rules empowering the State Officers to make computation of agricultural income contrary to what is computed by the Central Officers under the Central Act. We have noticed that by virtue of the provisions made by the legislature in Explanation to Section 2(a)(2), the second proviso to Section 8 and Section 20D, it is clear that the State Legislature intended to adopt the computation of agricultural income made under the provisions of the Central Act. Having specifically said so in the above Sections of the Act, if the Legislature wanted to deviate from that scheme of the Act, it could have in clear terms provided for a power being vested with its officers in any given case to recompute the income keeping in mind the revenue of the State but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void." 23. In Additional District Magistrate (Rev.) Delhi Administration v. Shri Ram, (2000) 5 SCC 451, it has been ruled that it is a well recognised principle that the conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. 24. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, the Constitution Bench has held that: "18. ... statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by reason of the specific power conferred by the statute to make rules and regulations establish the pattern of conduct to be followed." 25. In State of Karnataka and another v. H. Ganesh Kamath, (1983) 2 SCC 402, it has been stated that: "7. ... It is a well settled principle of interpretation of statutes that the conferment of rule making power by an Act does not enable the rule-making author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hors any statutory basis. It is ultra vires. A completely wrong principle has been applied by the Chhattisgarh High Court while relying on the decision of the Supreme Court in A.K. Roy Etc. Vs. Union of India & Anr., AIR 1982 SC 710, as that fact or legal situation does not exist in the present case. Last, it has been submitted that in absence of any express saving of the preexisting laws, the presumption drawn in favour of that saving, is plainly impermissible. 29. Shri Shambhu Chopra, learned Senior Advocate has, besides adopting the submissions so advanced by Shri Rakesh Ranjan Agarwal, further submitted, the notifications extending time as had been issued under the Ordinance and under the Enabling Act were only for the purpose of overcoming the immediate difficulty arising from the spread of the pandemic COVID-19. Both, the assessees as also the authorities under the Act were vastly inconvenienced and even obstructed. The authorities were inconvenienced in issuing and serving notices and orders as also in receiving replies and objections and conducting hearing in pending cases. Similarly, the assessees were inconvenienced. They could not have availed their rights both on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Dilip Kumar Ghosh & Ors. Vs Chairman & Ors., (2005) 7 SCC 567, wherein it was clearly recognized that a Circular cannot override the Rules. In Jagdish Balaram Bahira (supra), it was recognized that the administrative Circulars are subservient to legislative action, and they cannot act contrary either to the Constitutional or statutory provisions. 34. Sri Chopra has further sought to draw a distinction in the decision of the Chhattisgarh High Court by submitting, a wrong presumption has been drawn in the aforesaid decision that by issuance of the Notification under the Enabling Act, the operation of the pre-existing provision of the Act had been extended and thereby provisions of Section 148A of the Act (introduced by Finance Act 2021) and other provisions had been deferred. He would submit, there is no cannon of law as would allow such an interpretation to be made by this Court. Similarly, he would submit, the Chhattisgarh High Court has erred in reaching the conclusion that the Notifications insulated and saved (up to 30.06.2021), the pre-existing provisions pertaining to reassessment under the Act. It is his submission, unless there was a clear legislative enactment by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing in the Enabling Act and in fact there could never be any provision in that Act as may have put in abeyance the provisions of the Finance Act, 2021, that was yet to be born/enacted. Inasmuch as the Enabling Act has not undergone any amendment as may put in abeyance, provisions of Sections 2 to 88 of the Finance Act, 2021 and there is no other law to that effect, those provisions continue to be the only law occupying the field, w.e.f. 01.04.2021. All Notifications issued with reference to the pre-existing laws would therefore remain confined to the time limits to conclude pending proceedings, beyond the date 31.03.2021. Those Notifications may never be read to enable the executive authorities to initiate any fresh proceedings under the pre-existing laws, which proceedings did not exist on 01.04.2021. 39. Third, it is his submission, while enacting the Finance Act, 2021, the Parliament was aware of the ground realities. The Parliament was also aware of the existing statutory laws both under the Act as amended by the Finance Act, 2020 as also the Ordinance and the Enabling Act and Notifications issued thereunder. Still, it chose to enforce the new scheme for re-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger period than the State of Maharashtra - the situation even conceptually cannot be sustained having due regard to the rule of law and the jurisprudential aspect of the Limitation Act." 41. Next, it has been submitted, the Enabling Act only extended the limitation up to 31.03.2021 to do certain things only. Thereafter, it delegated the power to cause such further extensions to do those things beyond the date 31.12.2020. Since after 31.03.2021, the provisions under which such things were required to be done underwent substitution of law, the delegate of the legislature cannot now, seek to do or allow doing such things under the law that no longer exists. To allow such a possibility to exist would be to allow the delegate to do colourably, that which it cannot directly do after the Parliament enforced Sections 2 to 88 of the Finance Act 2021, w.e.f. 01.04.2021. 42. Then, it has been submitted, once the principal legislation enacted the law as has been done in the present case, its delegate was denuded of its powers, in the field occupied by the principal legislature. Here, reliance has been placed on yet another decision of the Supreme Court in A.B. Krishna & Ors. Vs. State of Kar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the earlier Act that the two cannot stand together. Here, though, principally, there is no repugnancy between the Act as amended by the Finance Act 2021 and the enabling law viz-a-viz the Act as amended by the Finance Act 2021, as the later Act came into force only w.e.f. 01.04.2021 (with respect to re-assessment procedure), the repugnancy may arise only in the event, the delegated legislation under the Enabling Act is enforced after 01.04.2021. To the extent that was not the clear intent of the Enabling Act, there is no repugnancy. Relevant to our discussion, paragraph nos. 13, 14 and 15 of the aforesaid decision, are quoted as below: "13. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive fields and there is no impediment for their existence side by side." 45. Last, relying on another decision of the Supreme Court in Gammon India Ltd. Vs. Special Chief Secretary & Ors., (2006) 3 SCC 354, Sri Mehrotra would further emphasize - the first submission advanced by Sri Rakesh Ranjan Agarwal, learned counsel for the petitioners, that substitution has the twin effect of repeal and enactment by replacement. 46. Sri Ashish Bansal, learned counsel has adopted the submissions advanced by learned counsel for the petitioners, as noted above. He has further relied on the provisions of Section 151-A of the Act introduced by the Enabling Act. It reads as below: "151A. (1) The Central Government may make a scheme, by notification in the Official Gazette, for the purposes of assessment, reassessment or recomputation under section 147 or issuance of notice under section 148 or sanction for issue of such notice under section 151, so as to impart greater efficiency, transparency and accountability by- (a) eliminating the interface between the income-tax authority and the assessee or any other person to the extent technologically feasible; (b) optimising utilisation of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be specified in that non-obstante clause. However, its effect must remain confined to the intendment of such a clause. Plainly, a non-obstante clause cannot be interpreted to cause effect, not contemplated. 49. Insofar as the phrase 'notwithstanding anything contained in the specified act' appears only in the context of completion or compliance of such action, it can only be applied to a proceeding that was already in existence when that clause confronted the Act as amended by the Finance Act, 2021, on 01.04.2021. Inasmuch as, in all the petitions, re-assessment notices were issued after 01.04.2021, it can never be said that there were any proceedings of re-assessment pending on the date when the non-obstante clause may be applied. He has placed reliance on a decision of the Supreme Court in A.G. Varadarajulu & Anr. Vs. State of T.N. & Ors., (1998) 4 SCC 231, wherein it was held as below: "14. We shall now deal with the issues raised before us. Do the words "notwithstanding anything in any other provision of this Act" occurring in Section 21-A override Section 3(42)? 15. It is true that the Tribunals below had accepted that the partition deed dated 24-9-1970 was exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act between the dates 20.03.2020 to 31.12.2020. Thereafter, a limited delegation was made in favour of the Central Government - to extend that time line, only for the purposes of completion or compliance etc. and issuance of certain notices. However, once the law underwent a change, upon enactment of the Finance Act, 2021, whereby the re-assessment procedure was completely changed, the time extension provision is of no help to the respondents as such time extension, cannot be exercised in absence of statutory substratum to which that time extension may be applied. 51. Adopting the submissions advanced by learned counsel for the petitioners noted above, Sri Parv Agarwal, learned counsel has laid stress; besides the above, Section 148-A, first introduced by the Finance Act, 2021 lays down a mandatory procedure to be followed for the purpose of making a re-assessment. Unless that procedure is first followed, no notice under Section 148 of the Act, either under the pre-existing law or under the substituted law, could ever be issued. Therefore, in any case, the impugned notices are without jurisdiction. He has placed reliance on a Constitution Bench decision of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions noted above, laid great stress that the provisions of Sections 2 to 88 of the Finance Act, 2021 came into force w.e.f. 01.04.2021 and they completely replaced the pre-existing law. He further emphasized, different dates were prescribed by the Finance Act, 2021 for enforcement of different provisions. Thus, Sections 2 to 88 of that Act were enforced with effect from 01.04.2021 by virtue of the clear stipulation made in Section 1(2) (a) of that Act and different stipulations were made for enforcement of other provisions. By way of example, it has been stated that Section 54 of Finance Act, 2021 enforced the provisions of Section 194Q, with effect from 01.07.2021. Similarly, Section 56 of the Finance Act, 2021 introduced and enforced the proviso to Section 206 AA, with effect from 01.07.2021. Again, by Section 57 of the Finance Act, 2021, Section 206 AB was introduced and enforced with effect from 01.07.2021. Thus, it has been submitted, the legislature was conscious of the realities and in its own wisdom, the Parliament chose to substitute the provisions of Sections 147, 148, 149, 150 and introduced Section 148-A of the Act, with effect from 01.04.2021. That having been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental concern of the Court is to inspect the existence of enacting power and once such power is found to be present, the next examination is to ascertain whether the enacted provision impinges upon any right enshrined in Part III of the Constitution. Broadly speaking, the process of examining validity of a duly enacted provision, as envisaged under Article 13 of the Constitution, is premised on these two steps. No doubt, the second test of infringement of Part III is a deeper test undertaken in light of settled constitutional principles. In State of Madhya Pradesh vs. Rakesh Kohli & Anr. (2012) 6 SCC 312, this Court observed thus: "17. This Court has repeatedly stated that legislative enactment can be struck down by Court only on two grounds, namely (i) that the appropriate legislature does not have competence to make the law, and (ii) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions…." (emphasis supplied) The above exposition has been quoted by this Court with approval in a catena of other cases including Bhanumati & Ors. vs. State of Uttar Pradesh & Ors. (2010) 12 SCC 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provisions of general application, and it cannot be controlled or overridden, unless specifically permitted. Since the petitioners have been unable to show any provision of law as may restrict the operation of such non-obstante clause, the writ petition must fail. In that regard, paragraph 21 of the decision in Union of India & Ors. Vs. Exide Industries Limited & Anr. (supra), is quoted below: "21. Section 43-B bears heading "certain deductions to be only on actual payment". It opens with a non obstante clause. As per settled principles of interpretation, a non obstante clause assumes an overriding character against any other provision of general application. It declares that within the sphere allotted to it by the Parliament, it shall not be controlled or overridden by any other provision unless specifically provided for. Out of the allowable deductions, the legislature consciously earmarked certain deductions from time to time and included them in the ambit of Section 43-B so as to subject such deductions to conditionality of actual payment. Such conditionality may have the inevitable effect of being different from the theme of mercantile system of accounting on accrual of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t became necessary on account of the spread of the second wave of the pandemic COVID-19. It has further been submitted that no further extension has been granted beyond 30 June 2021. Therefore, the mischief that existed stands addressed and remedied, and no prejudice has been caused to the petitioners who were otherwise liable to suffer initiation of reassessment proceedings. 61. Then, it has been submitted, Explanation to Clause A(a) of Notification No. 20 of 2021 dated 31.03.2021 and Explanation to Clause A(b) of Notification No. 38 dated 27.04.2021 are only clarificatory. Even if those Explanations were to be ignored, by virtue of the clear language of Section 3(1) of the Enabling Act, the time limits specified under the Act (prior to is amendment by Finance Act, 2021), stood extended by the Parliament, in cases where such limitations were expiring after 20th March 2020 and upto 31st December 2020, upto 31st December 2020. It is only with respect to such extension that a power was delegated on the Central Government to grant further extension/s. Therefore, the Explanations referred to above do not create any new law and they do not, in any way, offend the existing law. Hence, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affects the time limitation to conduct or conclude any proceeding that may have been or may be validly instituted under the Act, whether prior to or after its amendment by Finance Act, 2021. Insofar as, Section 1(2)(a) unequivocally enforced Sections 2 to 88 of the Finance Act, 2021, w.e.f. 01.04.2021, there can be no dispute if any valid proceeding could be initiated under the pre-existing Section 148 read with Section 147, after 01.04.2021. In support thereof other submission also appear to exist - based upon the enactment of Section 148A (w.e.f. 01.04.2021). (iv) The delegation made could be exercised within the four corners of the principal legislation and not to overreach it. Insofar as the Enabling Act does not delegate any power to legislate - with respect to enforceability of any provision of the Finance Act, 2021 and those provisions (Sections 2 to 88) had come into force, on their own, on 01.04.2021, any exercise of the delegate under the Enabling Act, to defeat the plain enforcement of that law would be wholly unconstitutional. (v) It also appears to be the submission of learned counsel for the petitioners that the Parliament being aware of all realities, both as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceeding on or after 01.04.2021, in accordance with the substituted law and not the pre-existing laws. 66. It is equally true that the Enabling Act that was pre-existing, had been enforced prior to enforcement of the Finance Act, 2021. It confronted the Act as amended by Finance Act, 2021, as it came into existence on 01.04.2021. In the Enabling Act and the Finance Act, 2021, there is absence, both of any express provision in itself or to delegate the function - to save applicability of the provisions of sections 147, 148, 149 or 151 of the Act, as they existed up to 31.03.2021. Plainly, the Enabling Act is an enactment to extend timelines only. Consequently, it flows from the above - 01.04.2021 onwards, all references to issuance of notice contained in the Enabling Act must be read as reference to the substituted provisions only. Equally there is no difficulty in applying the pre-existing provisions to pending proceedings. Looked in that manner, the laws are harmonized. 67. It may also be not forgotten, a reassessment proceeding is not just another proceeding emanating from a simple show cause notice. Both, under the pre-existing law as also under the law enforced from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit. That time limit alone stood extended upto 30 June, 2021. We also note, the learned Additional Solicitor General of India may not be entirely correct in stating that no extension of time was granted beyond 30.06.2021. Vide Notification No. 3814 dated 17.09.2021, issued under section 3(1) of the Enabling Act, further extension of time has been granted till 31.03.2022. In absence of any specific delegation made, to allow the delegate of the Parliament, to indefinitely extend such limitation, would be to allow the validity of an enacted law i.e. the Finance Act, 2021 to be defeated by a purely colourable exercise of power, by the delegate of the Parliament. 71. Here, it may also be clarified, Section 3(1) of the Enabling Act does not itself speak of reassessment proceeding or of Section 147 or Section 148 of the Act as it existed prior to 01.04.2021. It only provides a general relaxation of limitation granted on account of general hardship existing upon the spread of pandemic COVID -19. After enforcement of the Finance Act, 2021, it applies to the substituted provisions and not the pre-existing provisions. 72. Reference to reassessment proceedings with respect to pre-existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or implied force, it limited the applicability of the Enabling Act and the power to grant time extensions thereunder, to only such reassessment proceedings as had been initiated till 31.03.2021. Consequently, the impugned Notifications have no applicability to the reassessment proceedings initiated from 01.04.2021 onwards. 76. Upon the Finance Act 2021 enforced w.e.f. 1.4.2021 without any saving of the provisions substituted, there is no room to reach a conclusion as to conflict of laws. It was for the assessing authority to act according to the law as existed on and after 1.4.2021. If the rule of limitation permitted, it could initiate, reassessment proceedings in accordance with the new law, after making adequate compliance of the same. That not done, the reassessment proceedings initiated against the petitioners are without jurisdiction. 77. Insofar as the decision of the Supreme Court in the case of Ramesh Kymal Vs. Siemens Gamesa Renewable Power Private Limited (supra) is concerned, we opine, the same is wholly distinguishable. Therein The Insolvency and Bankruptcy Code 2016 was amended by the Parliament and a new Section 10A, was introduced, apparently again on account of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions issued thereunder, by no interpretative process can those Notifications be given an extended run of life, beyond 31 March 2020. They may also not infuse any life into a provision that stood obliterated from the statute with effect from 31.03.2021. Inasmuch as the Finance Act, 2021 does not enable the Central Government to issue any notification to reactivate the pre-existing law (which that principal legislature had substituted), the exercise made by the delegate/Central Government would be de hors any statutory basis. In absence of any express saving of the pre-existing laws, the presumption drawn in favour of that saving, is plainly impermissible. Also, no presumption exists that by Notification issued under the Enabling Act, the operation of the pre-existing provision of the Act had been extended and thereby provisions of Section 148A of the Act (introduced by Finance Act 2021) and other provisions had been deferred. Such Notifications did not insulate or save, the pre-existing provisions pertaining to reassessment under the Act. 80. In view of the above, all the writ petitions must succeed and are allowed. It is declared that the Ordinance, the Enabling Act and Sections ..... 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