Gopal Bansal Vs Assisstant Commissioner of Income Tax

“(A)Pass an appropriate order/ direction/ writ of Certiorari to call for the records relating to the impugned notice dated 31.08.2024 issued under section 148 of the Act (Annexure P-1) by the Respondent Ro. 1 for AY 2015-16 and quash the same for being illegal and

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without jurisdiction;

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(B)Pass an appropriate order/ direction I writ of Certiorari to call for the records relating to the impugned order dated 31.08.2024 issued under section l 48A(d) of the Act (Annexure P-2) by the respondent no.I for AY 2015-16 and quash the same for being illegal and without jurisdiction;”

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Mr. Anmol Jagga, learned counsel for the petitioner submits that the petitioner in writ petition is challenging the order passed under Section 148A(d) of Income Tax Act, 1961 (the Act) dated 31.08.2024, and consequential notice issued under Section 148 of the Act of the same date. The petition is relatable to the Assessment Year (AY) 2015-16. The challenge is on the ground that the same are barred by limitation in terms of first proviso Section 149 of the Act.

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In support of his submission Mr. Jagga relies upon the judgment of this Court in the case of Manju Somani v. Income Tax Officer Ward 70(1) & Ors reported as 2024 SCC OnLine Del 5292.

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In fact, we find that such a plea was advanced by the petitioner in reply to notice under Section 148A(b) of the Act and the same has been dealt with by the Assessing Officer (AO) in Paragraph 5.3 which we reproduce as under:

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“5.3 In this regard, it is submitted that since the decision of Hon’ble High Court in Manju Somani is a very recent one as pronounced on 23.07.2024.The department is in the process of examining the decision for acceptance or filing of SLP against the said order. Therefore, at this stage, it may not be appropriate to close the present 148A proceedings. If the proceedings are closed at this stage, the issue at hand shall be lost irrevocably. Hence, with due regard to the decision of the Hon’ble Court and in the circumstances mentioned above, where no

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direction regarding the stand of the revenue on this issue has been received, the matter is considered on merits.”

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On a specific query to Mr. Jagga, whether the judgment in Manju Somani (supra) has been challenged, he states that, as per his information no SLP has been filed against the same.

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Mr. Siddhartha Sinha, learned Senior Standing Counsel for the respondent states that he cannot confirm this aspect. 9. Mr. Sinha has not shown anything contrary to the judgment of this Court in Manju Somani (supra) , more particularly Paragraph 12 onwards, which reads as under:

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“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 the period within which such a notice could have been issued in accordance with the provisions as they existed prior thereto had elapsed. This is manifest from the provision using the expression “no notice under Section 148 shall be issued” if the time limit specified in the relevant provisions “…..as they stood immediately prior to the commencement of the Finance Act, 2021” had expired. A reassessment which is sought to be commenced post 01 April 2021 would thus have to abide by the time limits prescribed by Sections 149 (1)(b), 153A or 153B as may be applicable.

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13. Undisputedly, Section 149(1)(b) as it stood prior to the introduction of the amendments by way of Finance Act, 2021 prescribed that no notice under Section 148

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shall be issued if four years “but not more than six years” have elapsed from the end of the relevant assessment year. Thus the period of six years stood erected as the terminal point which when crossed would have rendered the initiation of reassessment impermissible in law.

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14. Viewed in light of the above, the impugned notice when tested on the anvil of the pre-amendment Section 149(1)(b) in order to be sustained would have to meet the prescription of six years. Undisputedly that period in respect of AY 2016-17 came to an end on 31 March 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.

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15. 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.

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16. We accordingly allow the present writ petition and quash the impugned order under Section 148A (d) dated 29 April 2024 as well as the consequential notice under Section 148 of even date.”

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Suffice to state, in view of the judgment of the Supreme Court in Union of Indian & Ors. v. Rajeev Bansal, Civil Appeal No. 8629/2024 and of this court in Manju Somani (supra), the present petition needs to be allowed, we order so.

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Additionally, we note that the issue in Manju Somani (supra) was relatable to the AY 2016-17. If that be so, the present petition being of the earlier AY 2015-16 it should naturally follow the same course. Consequently, the impugned order dated 31.08.2024 passed under Section

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148A(d) of the Act and the notice issued under Section 148 of the Act are set aside.

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