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TMI Blog2023 (3) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in Keenara Industries Pvt. Ltd. [ 2023 (3) TMI 104 - GUJARAT HIGH COURT] by placing reliance on directions of Ashish Agarwal [ 2022 (5) TMI 240 - SUPREME COURT] , 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. Stating differently, as per the old regime, for issuance of notice under section 148, in relation to AY 2013-14, the outer time limit would expire on 31.03.2020 and for issuing such notice in relation with AY 2014-15, the time period would conclude on 31.03.2021. As already noted, the department took shelter of the time limit extended by Notifications of the Central Board of Direct Taxes to treat the above class of notices to be within time. In Keenara Industries Pvt. Ltd. (supra), this Court proceeded to hold that enacting the provisions in Taxation and Other Laws (Relaxation Amendment of Certain Provisions) Act, 2020, was not the permissible device whereby the time limit could be legitimately extended for the purpose of issuing Notices under Section 148, which were otherwise barred in terms of Section 149, as it exists in the old regime. The Taxati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues 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 Mr. Varun K. Patel with learned advocate Mr.Dev Patel for the respondent Revenue and learned advocate Mr.Nikunt Raval with learned advocate Ms.Kalpana Raval for the respondent in respective matter, waives service of Rule in all. 2.1 Heard learned advocate Mr.Hardik Vora 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 respect of all the petitioners are given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year; (c) if four years, but not more than sixteen years, have elapsed from the end of the relevant assessment year unless the income in relation to any asset (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 showcause notice issued under clause (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 time line prescribed under section 149 of the Act for issuance of reassessment notice under Section 148 of the Act. The latest amongst the notification was the Notification No.38 of 2021 dated 27.04.2021 whereby the time limit was extended till 30.06.2021. 5.3.1 Notwithstanding that the amended sections 147 to 151 in the Act came into force with effect from 01.04.2021 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can reply to the show-cause 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 vis vis 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 148A may issue notice under section 148 (as substituted). (paras 28.1 to 28.5) 5.4.3 The following direction is material to assume significance in the controversy on hand, 28.5 All defences which may be available to the assesses including those available under section 149 of the IT Act and all rights and contentions which may be available to the concerned assessees and Revenue under the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 time limit specified under clause (b) of sub-section (1) of section 149, as they stood immediately before the commencement of the Finance Act, 2021. 2.15 As per clause (b) of sub-section (1) of section 149 of the Act, as they stood immediately before the commencement of the Finance Act, 2021, no notice under section 148 of the Act shall be issued for the relevant assessment year if four years, but not more than six y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 under the unamended reassessment provisions after 01.04.2021. Finance Act, 2021 also did not contain savings clause and since the legislature through Finance Act, 2021 and TLA Act did not include any intention to protect and extend the erstwhile scheme of section 148 of the Act. The life of erstwhile scheme of 148 cannot be elongated. The principle that would also employ is that the substitution for omit and obliterate the preexist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso 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 Bansal vs. Union of India [Writ Tax No. 1086 of 2022] and held to answer the questions posed before it thus, (i) The reassessment proceedings initiated with the notice under Section 148 (deemed to be a notice under Section 148-A), issued between 01.04.2021 and 30.06.2021, cannot be conducted by giving the benefit of relaxation/extension under the Taxation and Other Laws (Relaxation And Amendment of Certain Provisions) Act (TOLA) 2020 up to 30.03.2021, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Year 2014-15 impugned in Special Civil Applications No.4364 of 2023 are hereby set aside. (ii) Notice dated 27.07.2022 under Section 148 and Order dated 27.07.2022 under Section 148A(d) passed by the Assessing Officer seeking to reopen the assessment for the Assessment Year 2014-15 impugned in Special Civil Applications No.4467 of 2023 are hereby set aside. (iii) Notice dated 30.07.2022 under Section 148 and Order dated 30.07.2022 under Section 148A(d) passed by the Assessing Officer seeking to reopen the assessment for the Assessment Year 2014-15 impugned in Special Civil Applications No.4459 of 2023 are hereby set aside. (iv) Notice dated 21.07.2022 under Section 148 and Order dated 21.07.2022 under Section 148A(d) passed by the Assessing Officer seeking to reopen the assessment for the Assessment Year 2013-14 impugned in Special Civil Applications No.4461 of 2023 are hereby set aside. (v) Notice dated 29.07.2022 under Section 148 and Order dated 29.07.2022 under Section 148A(d) passed by the Assessing Officer seeking to reopen the assessment for the Assessment Year 2014-15 impugned in Special Civil Applications No.4466 of 2023 are hereby set aside. 11. All the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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