CHERIAN CHACKO CIBIN, V. INCOME TAX OFFICER,

WP(C)/24640/2021

AI Insights

The case involves Cherian Chacko Cibin, the petitioner, who was issued a notice under Section 148 of the Income Tax Act by the Income Tax Officer, Ward International Taxation, Cochin. The petitioner contested the notice, arguing that following the amendment to Section 148 by the Finance Act of 2021, the procedure under Section 148A should have been followed before initiating re-assessment proceedings. The Supreme Court's decision in Union of India (UOI) and Ors. v. Ashish Agarwal, which addressed similar issues, was cited. The court's ruling in this case was that notices issued under the unamended Section 148 should be treated as show-cause notices under the amended Section 148A, with specific procedures to be followed thereafter.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 768662 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-07-2022
• Assessment Year: misc
• Other Referred Cases: Union of India (UOI) and Ors. v. Ashish Agarwal; (2022) 444 ITR 1 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; P K MENON
• Assessee Lawyers: JOSEPH MARKOSE; ISAAC THOMAS; P G CHANDAPILLAI; ABRAHAM ALEXANDER; JOSEPH MARKOS; SHARAD KODANTHARA; ABRAHAM MARKOS
• Keywords: Finance Act of 2021; Income Tax; Re-assessment; Section 148; Section 148A; Supreme Court judgment
• Section: 148; 148A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 26TH DAY OF JULY 2022 / 4TH SRAVANA, 1944 WP(C) NO. 24640 OF 2021 PETITIONER: CHERIAN CHACKO CIBIN, AGED 34 YEARS 64/2731, MADACKAL HOUSE, PROVIDENCE ROAD, COCHIN-682 018. BY ADVS. JOSEPH MARKOSE (SR.) ISAAC THOMAS P.G.CHANDAPILLAI ABRAHAM ALEXANDER JOSEPH MARKOS SHARAD JOSEPH KODANTHARA ABRAHAM JOSEPH MARKOS RESPONDENTS: 1 INCOME TAX OFFICER, WARD INTERNATIONAL TAXATION, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, COCHIN-682 018. 2 COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, BENGALURU-560 034. BY ADVS. JOSE JOSEPH, SC, FOR INCOME TAX P.K.RAVINDRANATHA MENON (SR.) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24640 OF 2021 2 JUDGMENT The petitioner in this case was issued with notice under Section 148 of the Income Tax Act. The petitioner has approached this Court stating that after the amendment brought into Section 148 by the Finance Act of 2021, the procedure under Section 148A had to be followed before re-assessment proceedings were initiated by the Department. 2. Today, when the matter is taken up for consideration, it is the submission of the learned counsel appearing for the petitioner in this case that the matter now stands covered by the judgment of the Supreme Court in Union of India (UOI) and Ors. v. Ashish Agarwal; (2022) 444 ITR 1 (SC), where it has been held as follows:- “10. In view of the above and for the reasons stated above, the present Appeals are ALLOWED IN PART. The impugned common judgments and orders passed by the High Court of Judicature at Allahabad in W.T No.524/2021 and other allied tax appeals/petitions, is/are hereby modified and substituted as under:- “(i) The impugned section 148 notices issued to the respective Assessees which were issued under unamended section 148 of the IT Act, which were the subject matter of writ petitions before the various respective High Courts shall be deemed to have been issued under section 148 of the IT Act as substituted by the Finance Act, 2021 and construed or treated to be show-cause notices in terms of section 148A(b). The assessing officer shall, within thirty days from today provide to the respective Assessees information and material relied upon by the Revenue, so that the Assesees can reply to the show-cause notices within two weeks thereafter; WP(C) NO. 24640 OF 2021 3 (ii) 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 one-time measure vis-a-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; (iii) 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); 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 Finance Act, 2021 and in law shall continue to be available.” 3. The learned Standing Counsel appearing for the Department does not dispute the above position and states that the judgment of the Supreme Court covers this matter also. Accordingly, this writ petition will stand disposed of directing that notice issued under Section 148 of the Income Tax to the petitioner shall be treated as show-cause notice under Section 148A of the Income Tax Act. Thereafter, the proceedings shall be completed in the manner directed by the Supreme Court in the judgment referred to above. Sd/- GOPINATH P. JUDGE DK WP(C) NO. 24640 OF 2021 4 APPENDIX OF WP(C) 24640/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE IMPUGNED NOTICE DATED 28/04/2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P2 TRUE COPY OF THE ORDER DATED 30/07/2021 PASSED BY THE HONOURABLE HIGH COURT OF KERALA IN WPC NO.15294/2021. Exhibit P2(A) TRUE COPY OF THE ORDER DATED 13/07/2021 PASSED BY THE HONOURABLE HIGH COURT OF DELHI IN WPC NO.6443/2021 AND WPC NO.6451/2021. Exhibit P2(B) TRUE COPY OF THE ORDER DATED 07/07/2021 PASSED BY THE HONOURABLE HIGH COURT OF DELHI IN WPC NO.6176/2021. Exhibit P3 TRUE COPY OF THE ORDER DATED 09/07/2021 PASSED BY THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF SAHIL INTERNATIONAL V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 19(3) AND OTHERS. Exhibit P3(A) TRUE COPY OF THE ORDER DATED 05/07/2021 PASSED BY THE HON'BLE HIGH COURT OF JUDICATURE AT BOMBAY IN WP C NO.1334/2021. Exhibit P3(B) TRUE COPY OF THE ORDER DATED 03/06/2021 PASSED BY THE HON'BLE HIGH COURT OF JUDICATURE AT BOMBAY IN WP(L) NO.11766/2021. Exhibit P3(C) TRUE COPY OF THE ORDER DATED 15/07/2021 PASSED BY THE HON'BLE CALCUTTA HIGH COURT IN WPO/244/2021. Exhibit P4 TRUE COPY OF THE ASSESSMENT ORDER DATED 30/11/2017 PASSED BY THE 1ST RESPONDENT. WP(C) NO. 24640 OF 2021 5 Exhibit P5 TRUE COPY OF THE ORDER DATED 12/07/2019 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-II, KOCHI. Exhibit P6 TRUE COPY OF THE REPLY DATED 27/05/2021 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Exhibit P7 TRUE COPY OF THE NOTICE DATED 09/10/2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P8 TRUE COPY OF TAXATION AND OTHER LAWS (RELAXATION OF CERTAIN PROVISIONS) ORDINANCE, 2020 DATED 31/03/2020. Exhibit P9 TRUE COPY OF TAXATION AND OTHER LAWS (RELAXATION AND AMENDMENT OF CERTAIN PROVISIONS) ACT, 2020 DATED 29/09/2020. Exhibit P10 TRUE COPY OF THE NOTIFICATION S.O. 2033 (E)NO.35/2020/F.NO.370142/23/2020-TPL DATED 24/06/2020 ISSUED UNDER THE RELAXATION ACT. Exhibit P10(A) TRUE COPY OF THE NOTIFICATION S.O. 1432 (E)NO.20/2021/F.NO.370142/35/2020-TPL DATED 31/03/2021 ISSUED UNDER THE RELAXATION ACT. Exhibit P10(B) TRUE COPY OF THE NOTIFICATION S.O. 1703 (E)NO.38/2021/F.NO.370142/35/2020-TPL DATED 27/04/2021 ISSUED UNDER THE RELAXATION ACT. "