Jagmohan Jain V. Union of India

WPO/1938/2022

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The case involves Jagmohan Jain, the petitioner, who challenged the issuance of a notice under Section 148 of the Income Tax Act, 1961, by the Income Tax Authority. The petitioner argued that the notice was barred by limitation and that the statutory formalities required under Section 148 A of the Income Tax Act, as amended by the Finance Act, 2021, were not observed. The court considered similar cases and precedents from other High Courts and found in favor of the petitioner, leading to the quashing of the notice and subsequent proceedings.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 817882 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 06-04-2022
• Assessment Year: misc
• Other Referred Cases: Ashok Kumar Agarwal vs Union of India through its Revenue Secretary North Block & Ors., Bpip Infra Private Limited vs Income Tax Officer, Ward 4 (1), Jaipur, Man Mohan Kohli vs Assistant Commissioner of Income Tax & Anr., Manoj Jain vs Union of India & Ors., Bagaria Properties and Investment Private Limited & Anr.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SOUMEN BHATTACHARJEE
• Assessee Lawyers: ARVIND AGARWAL; F GHAFFAR
• Keywords: Finance Act 2021; Impugned notice; Legal provisions; Re-assessment; Ultra Vires
• Section: 148; 148-A

Judgement Text

"OD – 30 ORDER SHEET WPO/1938/2022 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE JAGMOHAN JAIN VS Union of India AND ORS BEFORE: The Hon'ble JUSTICE MD. NIZAMUDDIN Date : 6TH APRIL, 2022. Appearance: Mr. Arvind Agarwal, Adv. Mr. F. Ghaffar, Adv. ..for the petitioner Mr. Soumen Bhattacharjee, Adv. …for the Income Tax Authorities The Court : Let the supplementary affidavit filed by the petitioner be kept with the records and on perusal of the same it appears that till date no assessment order has been passed on the basis of the impugned notice under Section 148 of the Income Tax Act, 1961. Heard Learned Counsels appearing for the parties. Petitioner is aggrieved by the issuance of impugned notice under Section 148 of the Income Tax Act, 1961 on the ground that the same is barred by limitation and the respondent Income Tax Authority concerned, before issuing the impugned notices under Section 148 of the Income Tax Act, have not observed the statutory formalities under Section 148 A of the Income Tax Act as prescribed by the Finance Act, 2021 which are applicable 2 with effect from 1st April, 2021 before issuance of notices under Section 148 of the Act on or after 1st April, 2021. Issues arising in the present Writ Petition is purely legal and in this Writ Petition the assessee/petitioner has sought relief of quashing of the impugned re-assessment notice issued post 31st March, 2021 by the respondent Income Tax Authority concerned under Section 148 of the Income Tax Act, assessee/petitioner has also sought relief by way of a declaration declaring Explanations A(a)(ii)/A(b) to the Notification No. 20 [S.O. 1432 (E) dated 31st March, 2021 and Notification No. 38 [S.O.1703 (E)] dated 27th April, 2021 to the extent that the same extend the applicability of the “provisions of Section 148, Section 149 and Section 151 of the Act, as the case may be, as they stood as on the 31st March, 2021, before the commencement of the Finance Act, 2021” to the period beyond 31st March, 2021 as ultra vires the parent legislation, viz., The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (hereinafter referred to as ‘ Relaxation Act, 2020’). At the outset, both the counsel appearing for the parties jointly submitted that the issues involved in this Writ Petition is covered by the decision of the Division Bench of the Allahabad High Court dated 30th September, 2021 in the case of ‘Ashok Kumar Agarwal –vs- Union of India through its Revenue Secretary North Block & Ors.’ (Writ Tax No. 524/2021) decided in favour of assessee/petitioner on 30.09.2021 and order of Rajasthan High Court dated 25th November, 2021 in the case of Bpip Infra Private Limited-vs.- Income Tax Officer, Ward 4 (1), Jaipur (S.B. Civil Writ 3 Petition No. 13297/2021) and the order of Delhi High Court 15th December, 2021 in the case of Man Mohan Kohli –vs- Assistant Commissioner of Income Tax & Anr. In (W.P. (C) 6176 of 2021) and judgement and order of this Court dated 17th January, 2022 in the case of Manoj Jain Vs. Union of India & Ors. In WPA No. 11950 of 2021 and in the case of Bagaria Properties and Investment Private Limited & Anr. In WPO 244 of 2021. In view of judgment and order of this Court dated 17th January, 2022 in the case of Manoj Jain Vs. Union of India & Ors. In WPA No. 11950 of 2021 and in the case of Bagaria Properties and Investment Private Limited & Anr. in WPO No. 244 of 2021, this Writ Petition being WPO No.1938/2022 is disposed of by allowing the same. Explanations A(a)(ii)/A(b) to the Notifications dated 31st March, 2021 and 27th April, 2021 are declared to be ultra vires the Relaxation Act, 2020 and are therefore bad in law and null and void. Accordingly, impugned notice under Section 148 of the Income Tax Act and all subsequent proceedings are quashed with liberty to the Assessing Officers concerned to initiate fresh re-assessment proceedings in accordance with the relevant provisions of the Act as amended by Finance Act, 2021 and after making compliance of the formalities as required by the law. This writ petition is being entertained subject to payment of cost of Rs. 5000/- to the Calcutta High Court Bar Association Lawyers’ Benevolent Fund since the impugned notice under Section 148 of the Income Tax Act, 1961, has been issued on 6th April, 2021 as appears from record and this writ petition has been filed in March, 2022, that is, almost after ten months 4 from receipt of the impugned notice, without any explanation for such delay in filing this writ petition. Such cost has to be paid by the petitioner to the Calcutta High Court Bar Association Lawyers’ Benevolent Fund within seven days from date. List this matter as “To be Mentioned” on 19th April, 2022 for compliance. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. (MD. NIZAMUDDIN, J.) Sbghosh "