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TMI Blog2022 (4) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... the past provisions after the substitution and in fact an active indication to the contrary, inescapable conclusion that we must arrive at is that for any action of issuance of notice under Section 148 after 01.04.2021 the newly introduced provisions under the Finance Act, 2021 would apply. Mere extension of time limits for issuing notice under section 148 would not change this position that obtains in law. Under no circumstances the extended period available in clause (b) of sub-section (1) of Section 149 which we may recall now stands at 10 years instead of 6 years previously available with the revenue, can be pressed in service for reopening assessments for the past period. This flows from the plain meaning of the first proviso to sub-section (1) of Section 149. In plain terms a notice which had become time barred prior to 01.04.2021 as per the then prevailing provisions, would not be revived by virtue of the application of Section 149(1)(b) effective from 01.04.2021. All the notices issued in the present cases are after 01.04.2021 and have been issued without following the procedure contained in Section 148A of the Act and are therefore invalid. The subordinate legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tics, Ritu International Private Limited, M/s. Himalaya Intertrade Pvt. Ltd., Mahaveer Chand Parakh, Vyas Colonisers Private Ltd., Manju Devi Goyal, Rahul Chhabra (HUF), M/s Silver Fab Suitings Pvt, M/s Lakhpat Trading And Industrys Private Limited, M/s. Saraansh Suitings Private Limited, M/s Navkar Alloy Pvt. Ltd., M/s. Vinod Commodities Ltd., M/s Arihant Sharecom Pvt. Ltd., Nawal Kishore, Vinod Purohit, Prakash Jain Versus Union Of India, The Deputy Commissioner, Central Circle-2, Income Tax, The Income Tax Officer, Assistant Commissioner Of Income Tax, C-2, Udaipur. HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI AND HON'BLE MR. JUSTICE MADAN GOPAL VYAS For Petitioner: Mr. Sanjeev Johari, Sr. Adv. assisted by Mr. Shubhankar Johari, Mr. A.A. Bhansali, Mr. Abhishek Mehta, Mr. Varda Ram Choudhary, Mr. Anjay Kothari, Mr. Mukesh Gurjar, Ms. Twinkle Purohit for Mr. Sanjeet Purohit For Respondent: Mr. Kamal Kishore Bissa ORDER These writ petitions involve identical issues. The petitioners assessees have challenged respective notices of re-assessment issued by the assessing officer. All these notices are issued after 01.04.2021 and pertain to the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that time limits for issuing notice under Section 148 of the Act have been modified under substituted Section 149. Clause (a) of sub-section (1) of Section 149 reduces such period to three years instead of originally prevailing four years under normal circumstances. Clause (b) extends the upper limit of six years previously prevailing to ten years in cases where income chargeable to tax which has escaped assessment amounts to or is likely to amount to 50 lacs or more. Sub-section (1) of Section 149 thus contracts as well as expands the time limit for issuing notice under Section 148 depending on the question whether the case falls under clause (a) or clause (b). In this context the first proviso to Section 149(1) provides that no notice under Section 148 shall be issued at any time in a case for the relevant assessment year beginning on or before 01.04.2021 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 Section 149 as they stood immediately before the commencement of the Finance Act, 2021. As per this proviso thus no notice under Section 148 would be issued for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In case of St. Johns Teachers Training Institute Vs. Regional Director, National Council For Teachers Education and Another, reported in (2003) 3 SCC 321, it was observed that it is well settled in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and other invalid, the courts must adopt that construction which makes it valid. However it is equally well settled that the subordinate legislation does not enjoy same level of immunity as the law framed by the Parliament or the State Legislature. The law framed by the Parliament or the State Legislature can be challenged only on the grounds of being beyond the legislative competence or being contrary to the fundamental rights or any other constitutional provisions. Third ground of challenge which is now recognized in the judgment in case of Shayara Bano Vs Union of India reported in 2017 9 SCC 1 is of legislation being manifestly arbitrary. A subordinate legislation can be challenged on all these grounds as well as on the grounds that it does not conform to the statute under which it is made or tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2020 the Government of India was authorized to extend the time limits by issuing notifications in this regard. Issuing any explanation touching the provisions of the Income Tax Act was not part of this delegation at all. The CBDT while issuing the notifications dated 31.03.2021 and 27.04.2021 when introduced an explanation which provided by way of clarification that for the purposes of issuance of notice under Section 148 as per the time limits specified in Section 149 or 151, the provisions as they stood as on 31.03.2021 before commencement of the Finance Act, 2021 shall apply, plainly exceeded its jurisdiction as a subordinate legislation. The subordinate legislation could not have travelled beyond the powers vested in the Government of India by the parent Act. Even otherwise it is extremely doubtful whether the explanation in the guise of clarification can change the very basis of the statutory provisions. If the plain meaning of the statutory provision and its interpretation is clear, by adopting a position different in an explanation and describing it to be clarificatory, the subordinate legislature cannot be permitted to amend the provisions of the parent Act. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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