ABHISHEK KUMAR V. UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF FINANCE DEPTT OF REVENUE

WPC/1822/2022

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The case involves a writ petition filed by Abhishek Kumar challenging a notice and subsequent assessment order under the Income Tax Act, 1961. The petitioner argued that the notice issued under the unamended section 148 was invalid due to an amendment that required a preliminary enquiry before reassessment, which came into effect on 01.04.2021. However, the notice was dated 30.03.2021, prior to this amendment. The respondent argued that the notice was valid as it was issued before the amendment took effect. The court referenced a Supreme Court decision which allowed such notices to be treated as issued under the amended section 148-A, thus validating the proceedings. The court advised the petitioner to pursue an appeal as the alternative remedy.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 679757 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 08-06-2022
• Assessment Year: misc
• Other Referred Cases: Union of India and others versus Ashish Agarwal in Civil Appeal No. 3005/2022, Madhya Pradesh High Court in Writ Petition No. 28293/2021
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAHUL LAMBA
• Assessee Lawyers: SUMEET GADODIA; LUKESH KUMAR
• Keywords: Finance Act 2021; Income Tax; Jurisdiction; Notice; Preliminary enquiry; Reassessment
• Section: 147; 148; 144; 144B; 148A

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 1822 of 2022 Abhishek Kumar --- --- Petitioner Versus 1.Union of India through the Secretary, Ministry of Finance, Dept. of Revenue, New Delhi 2.Central Board of Direct Taxes through its Chairman, New Delhi 3. The Assistant Commissioner of Income Tax, Circle-1, Dhanbad --- --- Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : M/s Sumeet Gadodia, Lukesh Kumar, Advocates For the Respondent : Mr. Rahul Lamba, Advocate 04/08.06.2022 In the instant writ petition, the impugned notice issued under unamended section 148 of Income Tax Act, 1961 is dated 30.03.2021. The assessment order passed under section 147 read with section 144 and section 144B of Income Tax Act consequent thereto on 28.03.2022 (Annexure-2) has also been challenged. In the instant case, as per the petitioner, notice was communicated on 06.04.2021 i.e. after 31.03.2021. Based on this fact, learned counsel for the petitioner has urged that the impugned notice under unamended section 148 of the Act is bad in law in view of amendment carried out by the Finance Act, 2021 bringing into force Section 148A which requires a preliminary enquiry before initiating reassessment proceeding. Since the impugned notice is bad in law, any assessment undertaken thereunder would necessarily be without jurisdiction and void. 2. Learned counsel for the petitioner has referred to the judgment rendered by the Apex Court dated May 04, 2022 in the case of Union of India and others versus Ashish Agarwal in Civil Appeal No. 3005/2022 and analogous Civil Appeals reported in [2022 SCC OnLine SC 543]. Learned counsel for the petitioner has relied upon the judgment rendered by the Madhya Pradesh High Court in Writ Petition No. 28293/2021 dated 03.03.2022 (Annexure-9). It is submitted that the Division Bench of Madhya Pradesh High Court took note of the correspondence dated 24.02.2022 bearing letter no. 1002 issued by the Income Tax Officer-3 (1) of Bhopal which showed that the impugned notice dated 31.03.2021 was in fact sent to the said petitioner on -2- 16.04.2021 through e-mail. Therefore, the Hon’ble Court held that the impugned notice under unamended Section 148 issued after 01.04.2021, could not have been acted upon to undertake reassessment proceedings without following the mandatory requirement of amended section 148-A of Income Tax Act brought into force with effect from 01.04.2021. 3. Learned counsel for the Respondent Income Tax Department submits that reliance upon the judgment of the Apex Court to support the plea of invalidity of the proceedings initiated pursuant to the notice dated 30.03.2021, would not come to the rescue of the petitioner since the Apex Court in the case of Ashish Agarwal (Supra), while exercising power under Article 142 of Constitution of India, held that all such notices under unamended section 148 of Income Tax Act issued by the Revenue after 01.04.2021 which were the subject matter of more than nine thousand writ petitions before the various High Courts would be deemed to be notice issued under amended section 148-A of Income Tax Act. The Apex Court while dispensing with the inquiry contemplated under section 148-A(a) of the Act with prior approval of the specified authority as a onetime measure, allowed the Assessees to take all defences including those available under section 149 of the Act and all rights and contentions which may be available to the concerned Assessees and Revenue under the Finance Act, 2021. Since the impugned notice in the present writ petition is dated 30.03.2021 and there is nothing on record to show that it was issued after 30.03.2021 and on the contrary, the assessment order as also the impugned notice themselves show that it was signed and issued on 30.03.2021, such a plea could not come to the aid of the petitioner. Since the assessment order has already been passed, petitioner should avail the remedy of appeal under the Income Tax Act, 1961. 4. Having heard learned counsel for the parties on the plea raised herein and in view of the assessment proceedings having been concluded pursuant to the notice dated 30.03.2021 issued upon the petitioner, we are of the considered view that the petitioner should avail the alternative remedy of appeal. Petitioner is at liberty to raise the instant plea as well -3- before the Appellate Authority. Needless to say, the Appellate Authority shall also examine the instant plea in accordance with law and after due inquiry on facts. Writ petition is accordingly disposed of. (Aparesh Kumar Singh, J.) (Deepak Roshan, J.) A.Mohanty "