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TMI Blog2024 (8) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023. We thus find ourselves unable to sustain the impugned action of reassessment and which was commenced pursuant to the notice dated 29 April 2024. It would be important to note that the respondents also do not attempt to sustain the initiation of action on any other statutory provision and which could be read as extending the time limit that applied. We also find ourselves unable to read Twylight Infrastructure as empowering them to reopen assessments contrary to the negative covenant which forms part of Section 149 of the Act. We accordingly allow the present writ petition and quash the impugned order under Section 148A (d) as well as the consequential notice u/s 148 of even date. - HON'BLE MR. JUSTICE YASHWANT VARMA HON'BLE MR. JUSTICE RAVINDER DUDEJA For the Petitioner Through: Mr. Ajay Vohra, Sr. Adv. with Mr. Aniket D. Agrawal and Mr. Saksham Singhal, Advs. For the Respondents Through: Mr. Aseem Chawla, SSC with Ms. Pratishtha Chaudhary, Adv. JUDGMENT YASHWANT VARMA, J. (ORAL) 1. This writ petition has been preferred seeking the following reliefs:- (I) issue a writ in the nature of certiorari/ mandamus or any other appropriate writ, order or direction for quashin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N Driveshafts (India) Ltd. v. Income Tax Officer and Others (2003) 1 SCC 72, the requirement of an assessee being afforded an opportunity to represent against a proposed reassessment came to be statutorily engrafted in terms of clause (b), (c) and (d) of Section 148A. 6. Suffice it to note that the said writ petition along with others ultimately came to be allowed on 16 March 2022 in terms of the judgment rendered in Mon Mohan Kohli v. Assistant Commissioner of Income-tax and Another 2021 SCC OnLine Del 5250 . The Division Bench of our Court upon noticing the legislative amendments which had come into effect from 01 April 2021 held:- 97. This court is of the view that as the Legislature has introduced the new provisions, sections 147 to 151 of the Income-tax Act, 1961 by way of the Finance Act, 2021 with effect from April 1, 2021 and as the said section 147 is not even mentioned in the impugned Explanations, the reassessment notices relating to any assessment year issued under section 148 after March 31, 2021 had to comply with the substituted sections. 98. It is clarified that the power of reassessment that existed prior to March 31, 2021 continued to exist till the extended perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ock provision are contrary to facts and untenable in law. 103. Consequently, this court is of the view that the executive/respondents/ Revenue cannot use the administrative power to issue notifications under section 3(1) of the Relaxation Act, 2020 to undermine the expression of Parliamentary supremacy in the form of an Act of Parliament, namely, the Finance Act, 2021. This court is also of the opinion that the executive/ respondents/Revenue cannot frustrate the purpose of substituted statutory provisions, like sections 147 to 151 of Income-tax Act, 1961 in the present instance, by emptying it of content or impeding or postponing their effectual operation. 7. It is pertinent to note that the aforesaid decision had accorded liberty to the respondents to draw proceedings afresh if so permitted by law. This becomes evident from a reading of paragraph 105 of the report which is extracted hereinbelow:- 105. Consequently, the impugned reassessment notices issued under section 148 of the Income-tax Act, 1961 are quashed and the present writ petitions are allowed. If the law permits the respondents-Revenue to take further steps in the matter, they shall be at liberty to do so. Needless to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue and the learned Senior Advocates/learned counsel appearing on behalf of the respective asses sees. We are also of the opinion that if the aforesaid order is passed, it will strike a balance between the rights of the Revenue as well as the respective assessees as because of a bona fide belief of the officers of the Revenue in issuing approximately 90,000 such notices, the Revenue may not suffer as ultimately it is the public exchequer which would suffer. 27. Therefore, we have proposed to pass the present order with a view to avoiding filing of further appeals before this Court and burden this Court with approximately 9000 appeals against the similar judgments and orders passed by the various High Courts, the particulars of some of which are referred to hereinabove. We have also proposed to pass the aforesaid order in exercise of our powers under Article 142 of the Constitution of India by holding that the present order shall govern, not only the impugned judgments and orders passed by the High Court of Judicature at Allahabad, but shall also be made applicable in respect of the similar judgments and orders passed by various High Courts across the country and therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all stand modified to the aforesaid extent. The present order is passed in exercise of powers under Article 142 of the Constitution of lndia so as to avoid any further appeals by the Revenue on the very issue by challenging similar judgments and orders, with a view not to burden this Court with approximately 9000 appeals. We also observe that the present order shall also govern the pending writ petitions, pending before various the High Courts in which similar notices under Section 148 of the Act issued after 1-4-2021 are under challenge. 30. The impugned common judgments and orders passed by the High Court of Allahabad and the similar judgments and orders passed by various High Courts, more particularly, the respective judgments and orders passed by the various High Courts particulars of which are mentioned hereinabove, shall stand modified/substituted to the aforesaid extent only. 9. Apparently and taking cue from the observations appearing in the aforenoted decision of the Supreme Court, fresh notices came to be issued to the writ petitioners on 23 May 2022. This, yet again, led to litigation being instituted before this Court and this time by way of W.P.(C) 16515/2022. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of (i) an asset; (ii) expenditure in respect of a transaction or in relation to an event or occasion; or (iii) an entry or entries in the books of account, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more:] 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 [a notice under section 148 or section 153-A or section 153C 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 or section 153A or section 153-C, as the case may be], 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 cases referred to in clauses (i), (iii) and (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything contained in sub-section (1), where the income chargeable to tax represented in the form of an asset or expenditure in relation to an event or occasion of the value referred to in clause (b) of sub-section (1), has escaped the assessment and the investment in such asset or expenditure in relation to such event or occasion has been made or incurred, in more than one previous years relevant to the assessment years within the period referred to in clause (b) of sub-section (1), a notice under section 148 shall be issued for every such assessment year for assessment, reassessment or recomputation, as the case may be.] (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151.] 12. As is manifest from the above, the Proviso to Section 149 clearly bids us to go back in point of time and examine whether a proposed reassessment pertaining to a period prior to 01 April 2021 would sustain based on the time frames as they existed prior to the promulgation of Finance Act, 2021. The Proviso embodies a negative command restraining the respondents from issuing a notice under Section 148 in respect of an AY prior to 01 April 2021, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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