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TMI Blog2025 (1) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ions), then, whether an AO himself can suo motu treat those orders as non-est and start fresh re-assessment proceeding is a debatable point. It cannot be considered by the CIT(Appeals) in the manner as is done in the impugned order. The legal status of both the re-assessment orders are to be determined independently without getting influenced by the action of the AO initiated under section 148(a). Suo motu it cannot be construed by AO that earlier assessments passed on 31.03.2022 on a notice issued under section 148 would automatically obliterate or extinguish by the guidelines issued by the Hon ble Supreme Court in the case of Ashish Agarwa [ 2022 (5) TMI 240 - SUPREME COURT] The Hon ble Delhi High Court [ 2024 (4) TMI 96 - DELHI HIGH COURT] has held that those orders would remain unaffected and their status is to be decided on the basis of their own merits. It cannot be a case that they would automatically extinguish and AO will be enable to pass the fresh assessment u/s 148(a) of the Income Tax Act. Therefore, ideally ld. CIT(Appeals) should have not assumed, as if subsequent proceeding initiated by the ld. Assessing Officer under section 148(a) and assessment orders passed ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed that no appeal is to be filed. That decision was taken by the assessee with full deliberation and therefore, delay in filing the appeals be not condoned. 4. We have duly considered the rival contentions and gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon ble High Court as well as before the Hon ble Supreme Court, then, Hon ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon ble Supreme court from the decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year. 10. In the original grounds of appeals, the assessee has raised three grounds, out of which Ground No. 3 is a general ground, which does not call for recording of any specific finding. 11. Grounds No. 1 2 are interconnected with each other. In these grounds, the assessee has pleaded that ld. CIT(Appeals) has erred in dismissing the appeals of the assessee by observing that since fresh assessment orders have been passed by following new provision of section 148(a), therefore, these assessments passed under section 143(3) read with section 147 become non-est. 12. The ld. Counsel for the assessee has filed written submission, wherein he has placed on record the list of events, which are common in all the three years. Therefore, we take note of these list of events, which reads as under:- Sr No. Date Event 1 17-09-2020 Survey was conducted on the assessee on 17-09-2020. During the course of survey proceedings, certain books of accounts and other documents were impounded and on the basis of these documents, certain discrepancies were noted by the Department. 2 30-06-2021 Accordingly, proceedings were initiated for the subject assessment years vide issue of notice u/s 148 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 148A of the Act in view of the directions of the Hon'ble Supreme Court in the case of Union of India vs Ashish Agarwal (2022) SCC Online SC 543. The relevant extract of the judgment is quoted below: Aggrieved against the said assessment, the appellant has filed present appeal and raised 10 grounds of appeals which involve many legal and factual issues. During the appellate proceedings, Shri Amit Kamalia, FCA appeared on behalf of the appellant and filed detailed written submission in support of the grounds taken in the instant appeal. In the meantime, an intimation was received from the AO that fresh orders w/s 143(3)/147 have been passed on 16.11.2023 following new provisions of section 148A in view of the directions of Hon'ble Supreme Court in the case of Union of India vs Ashish Agarwal (2022 SCC Online SC 543). Accordingly, the order appealed against becomes non-est. Therefore, the instant appeal is rendered infructuous and the grounds taken by the Ld. AR remain for academic purposes only. 13. For the purpose of deciding these appeals, further reference to the facts is not required. Dissatisfied with the assessment order, the assessee filed appeals in these t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) instead of dismissing the appeals ought to have allowed it because ld. CIT(Appeals) was satisfied that notice under section 148 was issued on 30.06.2021 when this section was no more applicable, because w.e.f. 1st April, 2021, a new scheme of reassessment was introduced in the shape of section 148(A). He further contended that a perusal of observation of the ld. CIT(Appeals), it reveals that ld. CIT(Appeals) was satisfied that the impugned assessment orders are non-est but instead of quashing them simply gave an advance authority for legalizing the subsequent assessment orders passed on a notice issued under section 148(A). The finding of the ld. CIT(Appeals) is that since ld. Assessing Officer has passed fresh assessment order on 16.11.2023 under section 143(3) read with section 147, therefore, old assessment becomes non-est. This finding is a conditional one, whereas he should have recorded the independent finding on the assessment orders passed under the old provisions. 15. In his second fold of submission, he contended that the judgment of the Hon ble Supreme Court in the case of Union of India -vs.- Ashish Agarwal is no longer applicable on the facts of the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to note that once reassessment order is passed by the ld. Assessing Officer (in the present appeal, such orders were passed on a notice issued under section 148, i.e. old provisions), then, whether an Assessing Officer himself can suo motu treat those orders as non-est and start fresh re-assessment proceeding is a debatable point. It cannot be considered by the ld. CIT(Appeals) in the manner as is done in the impugned order. The legal status of both the re-assessment orders are to be determined independently without getting influenced by the action of the ld. Assessing Officer initiated under section 148(a). 18. Before deliberating further, we find that Hon ble Delhi High Court in the case of Anindita Sengupta -vs.- ACIT has examined this aspect in details which cover this issue. The facts in this case are that the assessee has filed her return of income for A.Y. 201314 on 27.03.2014 declaring an income of Rs.4,83,099/-. The ld. Assessing Officer has passed a scrutiny assessment under section 143(3) on 12.01.2016. The ld. Assessing Officer thereafter reopened the assessment on 31.03.2021 by issuance of a notice under section 148 of the Income Tax Act. The Hon ble Court has obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imarily concerned with concluded assessments. It is this indubitable position which constrained the Supreme Court to frame directions requiring those notices to be treated as being under Section 148A(b) and for the AO proceeding thereafter to frame an order as contemplated by Section 148A(d) of the Act. The Supreme Court significantly observed that the High Courts' instead of quashing the impugned notices should have framed directions for those notices being construed and deemed to have been issued under Section 148A. Ashish Agarwal proceeded further to observe that the Revenue should have been permitted to proceed W.P.(C) 12542/2022 further with the reassessment proceedings as per the substituted provisions...... . Our view of the judgement being confined to proceedings at the stage of notice is further fortified from the Supreme Court providing in para 8 of the report that The respective impugned Section 148 notices issued to the respective assessees shall be deemed to have been issued under section 148A of the Income Tax Act as substituted by Finance Act, 2021 and treated to be show cause notices in terms of Section 148A(b). As would be manifest from the aforesaid extract, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lis. The Constitution Bench while acknowledging the amplitude of the Article 142 power placed a significant caveat when it observed that benefits derived by a litigant based on a judicial order validly passed cannot be annulled especially when they may not even have been parties to the cause. This too convinces us to hold in favour of the petitioner and come to the inevitable conclusion that the writ petition must succeed. 29. Accordingly, and for all the aforesaid reasons, we allow the present writ petition and quash the impugned SCN dated 30 May 2022 issued under Section 148A(b), the order dated 19 July 2022 issued W.P.(C) 12542/2022 under Section 148A(d) as well as the notice referable to Section 148 of the Act dated 20 July 2022 . 19. The Hon ble High Court has propounded that direction in the case of Ashish Agarwal under Article 142 would not be applicable in those cases where assessments have been passed on the basis of a notice issued under section148 of the Income Tax Act. Those assessments would not be automatically nullified to enable the ld. Assessing Officer to start fresh reassessment proceeding under section 148(a) of the Income Tax Act. The Hon ble Delhi High Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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