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TMI Blog2023 (4) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... identical issues, therefore, they were heard together to be treated for disposal by this common judgment and order. 1.2 In the facts and circumstances of the case, having regard to the issues involved and with consent and request of learned advocates for the parties, all these Special Civil Applications were taken up for final consideration today. 2. Rule returnable in each of the Special Civil Applications forthwith. Learned advocate Mrs.Kalpana Raval for the respondent Revenue waives service of Rule in all. 2.1 Heard learned advocate Mr.Dhinal Shah for the petitioners and learned advocate for the respondent. 3. In the present petitions filed under Article 226 of the Constitution, the respective petitioners have called in question the notice issued by respondent - assessing officer under Section 148 of the Income Tax Act, 1961 seeking to reopen the assessment in respect of assessment year 2013-14 or assessment year 2014-15 as the case may be. Also challenged are the orders passed under Section 148A(d) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"). 3.1 The details of date of notice, date of order under Section 148A(d) of the Act, assessment year, etc., in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the provisions introduced in the Finance Act, 2021 described as new regime, the development of the law emanating from Keenara Industries Pvt. Ltd. (supra) in that regard may be revisited with, by noticing the aspects considered and decided in the said decision. 5.1 Section 147 of the Act empowers the assessing officer to reassess the income of the assessee subject to the provisions of Sections 148 to 151 of the Act in case any income chargeable to tax has escaped assessment. 5.1.1 Prior to the applicability of Finance Act, 2021 with effect from 01.04.2021, for the provisions of section 149 then existed, notice under section 148 could be issued for the relevant assessment year within four/six years from the end of the relevant assessment year concerned. Section 149 as operated in the old regime prior to the Finance Act, 2021, reads as under, "149. Time limit for notice.-(1) No notice under section 148 shall be issued" for the relevant assessment year,- a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) or clause (c): (b) if four years, but not more than six years, have elapsed from the end of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 shall be issued for the relevant assessment year,- (a) if three years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b); (b) if three years, but not more than ten years, have elapsed from the end of the relevant assessment year unless the Assessing Officer has in his possession books of account or 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 subsection 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 searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at that time on account of being beyond the time limit specified under the provision as it stood immediately before the commencement of the Finance Act, 2021. 5.2.4 In other words, in respect of the notice under section 148 of the Act relating to the assessment year beginning on or before 01.04.2021, the operational conditions in the provision as they stood before 01.04.2021 were maintained. It thus included the factor of prescription of time limit-the limitation. 5.3 It may be mentioned that in wake of spread of pandemic of Covid-19 around March 2020 and onwards, leading to the lockdown resulting into societal affairs coming to a standstill, Ordinance No. 2/20 dated 31.03.2020 was promulgated by the Central Government, titled as the Taxation and Other Laws (Relaxation and Amendment Of Certain Provisions) Ordinance, 2020, which became the Act subsequently, to be applied retrospectively from 31.03.2020, being the date of ordinance. Under section 3 of the Taxation and Other Laws (Relaxation and Amendment Of Certain Provisions) Act, 2020, (hereinafter referred to as 'the Taxation and other Laws Act, 2020') various notifications were issued from time to time extending the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective High Courts shall be deemed to have been issued under section 148A of the IT Act as substituted by the Finance Act, 2021 and construed or treated to be showcause notices in terms ofsection 148A(b). The assessing officer shall, within thirty days from today provide to the respective assessees information and material relied upon by the Revenue, so that the assesees can reply to the showcause notices within two weeks thereafter; The requirement of conducting any enquiry, if required, with the prior approval of specified authority under section 148A(a) is hereby dispensed with as a onetime measure visàvis those notices which have been issued under section 148 of the unamended Act from 01.04.2021 till date, including those which have been quashed by the High Courts. Even otherwise as observed hereinabove holding any enquiry with the prior approval of specified authority is not mandatory but it is for the concerned Assessing Officers to hold any enquiry, if required; The assessing officers shall thereafter pass orders in terms of section 148A(d) in respect of each of the concerned assessees; Thereafter after following the procedure as required under section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessing officer to issue notice for reassessment. This embargo is made to continue in the new regime also. 5.5 Now the reopening notices which related to the period prior to 01.04.2021, but issued between 01.04.2021 to 30.06.2021 came to be challenged before the Division Bench of this Court in Keenara Industries Pvt. Ltd. (supra), by placing reliance on directions in paragraph 28.5 of Ashish Agarwal (supra:SCC), and thus by contending that since they were issued after six years from the end of the relevant assessment year, they were barred and were without jurisdiction. 5.6 In Keenara Industries Pvt. Ltd. (supra), the Division Bench noticed the crux of the contents on that count raised by the petitioners in the following paragraphs, "2.14 According to the petitioner, the impugned notice is barred by limitation where attention of this Court has been drawn to the legal provision. As per first proviso to subsection (1) of section 149(1), no notice under section 148 of the Act shall be issued at any time in a case for the relevant assessment year beginning on or before 1st day of 2021, is such notice could not have been issued at that time on account of being beyond the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at secondary legislation would not override the principal legislation-the Finance Act, 2021. Also negatived by the Division Bench in Keenara Industries Pvt. Ltd. (supra) as per observations in paragraph 36 of the judgment, the concept of freezing the time limit. It was held that it was not permissible in law for the Revenue to travel back in time. Nor does the Taxation and Other Laws Act endorse to such concept. It was held as per paragraphs 38 and 39 of the Keenara Industries Pvt. Ltd. (supra) that Notifications extending the due dates under the old provisions could not breath any more after the repeal of the old provisions. 5.8.2 In paragraph 21, it was observed that the Taxation Laws Relaxation Act, 2020, did not elongate the erstwhile scheme, 21. It is to be noted that while enacting the Finance Act, 2021, Parliament was aware of the existing statutory laws both under the Act as amended by the Finance Act, 2021 as also the ordinance and the TLA Act and Notification issued there under. However, the new scheme for reassessment which was made effective from 01.04.2021 does not have any saving clause. This brings an end to the possibility of any fresh proceedings being initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under new regime by applying section 149 (1)(b) of the Act which came into effect from 01.04.2021." 6.1 Keenara Industries Pvt. Ltd. (supra) thus considered the question of limitation vis-a-vis notices for reopening of the assessment issued for the Assessment Year 2013-14 and Assessment Year 2014- 15. The final statement of law could be said to be contained in para 52 of Keenara Industries Pvt. Ltd. (supra), "A conjoint reading of section 149(1) proviso w.e.f. 01.04.2021 along with section 149(1)(b) prior to 01.04.2021. The case of the petitioner for assessment years 2013-14 and 2014-15 cannot be reopened. The assessment year is 2013-14 (01.04.2012 to 31.03.2013) and assessment year 2014-15 (01.04.2013 to 31.03.2014). The end of assessment year is 31.03.2014 and 31.03.2015 respectively. Therefore, the last date for issuance of notice under section 148 of the Act would be 31.03.2020 or 31.03.2021 (being six years from the end of relevant assessment year) whereas the impugned notices under section 148 is issued beyond that period and hence, the same are clearly time barred." 6.2 It may also be mentioned that the Allahabad High Court also dealt with similar issues in Rajeev Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Court. Accordingly, they are neither delineated, nor are gone into in respect of the above petitions. 9. All other questions on facts involved in the reasons weighed with Assessing Officer seeking to reopen the assessment are kept open in all cases. 10. As a result, the following order is passed, (i) Notice dated 27.07.2022 under Section 148 and Order dated 22.07.2022 under Section 148A(d) of the Income Tax Act, 1961 passed by the Assessing Officer seeking to reopen the assessment for the Assessment Year 2014-15 impugned in Special Civil Applications No.5029 of 2023 are hereby set aside. (ii) Notice dated 22.07.2022 under Section 148 and Order dated 22.07.2022 under Section 148A(d) of the Income Tax Act, 1961 passed by the Assessing Officer seeking to reopen the assessment for the Assessment Year 2013-14 impugned in Special Civil Applications No.5030 of 2023 are hereby set aside. (iii) Notice dated 23.07.2022 under Section 148 and Order dated 23.07.2022 under Section 148A(d) of the Income Tax Act, 1961 passed by the Assessing Officer seeking to reopen the assessment for the Assessment Year 2014-15 impugned in Special Civil Applications No.5031 of 2023 are hereby s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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