9911796707
TMI Blog2024 (9) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... alternate remedy of an appeal, as filing of such appeal itself would be an empty formality. In the aforesaid circumstances, the inherent illegality of the impugned notice under Section 148 of the Act being time-barred, which percolates into the assessment order passed thereunder is an incurable defect, regardless of the forum before which the same is agitated. In these circumstances, it cannot be said that it was not appropriate for the Petitioner to invoke the jurisdiction of this Court under Article 226 when the assessing officer has acted without jurisdiction. The notice dated 25 July, 2022 u/s 148 of the Act could not have been issued for the assessment year 2013-14. It is on such notice, the assessment order dated 26 May, 2023 has been passed. This is clearly a case where the Assessing Officer has proceeded without jurisdiction and possibly applying the amended provisions of Section 149 as incorporated by the Finance Act to the case in hand when he issued notice dated 25 July, 2022 overlooking the fact that in the present case as the law would stand, the limitation had already expired and within the extended period of limitation as noted by us herein. Thus, once the notice its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdraw the said notice under section 148 of the Act dated 25.07.2022 ( Exhibit G ), Order under section 148A (d) of the Act dated 25.07.2022 ( Exhibit F ), show cause notice under section 148A (b) of the Act dated 31.05.2022 ( Exhibit E ), the order passed u/s. 147 read with section 144 of the Act dated 31.03.2024 ( Exhibit L ), the notice of demand in u/s. 156 dated 31.03.2024 ( Exhibit M ) as well as the show-cause notice under section 274 read with section 271 (1) (c) of the Act dated 31.03.2024 ( Exhibit N ). (c) that this Hon ble Court be pleased to declare the provisions of the Instruction No. 1/2022 dated 11 May 2022 as unconstitutional, ultra vires and violative of Article 14 of the Constitution of India being illegal and hence void. (d) that this Hon ble Court be pleased to issue a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction under Article 226 of the Constitution of India prohibiting Respondents from taking any steps in furtherance of the said notice under section 148 of the Act dated 25.07.2022 ( Exhibit G ), Order under section 148A (d) of the Act dated 25.07.2022 ( Exhibit F ), show cause notice under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Hexaware wherein one of the questions considered by the Court as (Question No.2) Whether the notice in the said case dated 27th August, 2022 issued under Section 148 of the Act was barred by limitation as per the first proviso to Section 149 of the Act? . The issue was answered in terms of what was held by the Court in Paragraph 24 to 29 of Hexaware. The Division Bench in such context has observed that :- 25. Section 149 (1) (b) of the erstwhile provisions provided a time limit of six years from the end of the relevant assessment year for issuing notice under section 148 of the Act. For the relevant assessment year, being Assessment Year 2015-2016, 6th year expired on 31st March 2022. The notice under section 148 of the Act, in the present case, is issued on 27th August 2022, i.e., clearly beyond the period of limitation prescribed in Section 149 read with the first proviso to the said section. This is squarely covered by paragraphs 36 and 37 of New India Assurance (supra) which has been reproduced above in paragraph 23. 26. The purpose of the first proviso to Section 149 of the Act is consistent with the stated object of the government to make prospective amendments in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position. Does the fact that the second proviso says that there is no period of limitation make a difference? 29. It was submitted on behalf of Revenue that the period of limitation for the purposes of Section 149 of the Act has to be seen with respect to the original notice under section 148 of the Act, which was issued to petitioner on 8th April 2021 and as the said notice was issued within the period of six years from the end of the relevant assessment year, which was expiring on 31st March 2022, the reassessment proceedings are within the period of limitation prescribed in Section 149 of the Act. It is not acceptable. Section 149 of the Act sets out, inter alia, the time limit for issuing notice under section 148 of the Act. Apart from the period of limitation set out in the said Section, the first proviso lays down a further restriction on the issue of a notice under section 148 of the Act. The period of limitation as well as the said further restriction is framed/provided in respect of a notice under 148 of the Act, and not for a notice under section 148A of the Act. The notice dated 8th April 2021, which though originally issued as a notice under section 148 of the Act, (un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of Section 148 of the Act and consequently under Section 147 of the Act, as held in Hexaware. It is hence submitted that this Court needs to entertain this petition without relegating the petitioner to avail of a statutory remedy of an appeal. 8. Learned counsel for the petitioner has also drawn our attention to the decision of this Court in Kairos Properties Pvt Ltd. V. Assistant Commissioner of Income Tax Ors. Writ Petition (L) No.22686 of 2024, where the Court considered the effect of scheme as notified by the Central Government under the notification dated 29 March, 2022. The Court, considering the relevant provisions held that this scheme as notified in paragraph 3 of the notification would take within its ambit steps taken by the Revenue in issuing notice under section 148A (b) as also an order passed under Section 148A (d), so as to be included within the ambit of Section 151A of the Act. It is submitted that in this view of the matter, on both the applicability of the law as laid down by this Court in Hexaware as also considering the observations of this Court in Kairos Properties , the petition would be required to be allowed. It is submitted that in thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that such reopening notices could travel back in time and that the provisions of TOLA protected such reopening notices (we do not agree), even then, in so far as the notices issued for AY 2013-14 is concerned, would in any case be barred by limitation. As stated earlier, under the erstwhile Section 149, a notice under Section 148 could have been issued within a period of six years from the end of the relevant assessment year. The Notifications issued under TOLA, viz., Notification No. 20/2021, which is relied upon by the Revenue, only cover those cases where 31st March, 2021 was the end date of the period during which the time limit, specified in, or prescribed or notified under the Income Tax Act falls for completion. The limitation under the Income Tax Act, 1961(erstwhile Section 149) for reopening the assessment for the AY 2013-14 expired on 31st March 2020. Hence, Notification No.20/2021 did not apply to the facts of the present case, viz., reopening notice for the AY 2013-14. Therefore, the Revenue could not issue any notice under Section 148 beyond 31st March 2021 and hence, even the relate back theory of the Revenue could not safeguard the reassessment proceedings initiate ..... 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