OLAM AGRO INDIA PRIVATE LIMITED, V. INCOME TAX OFFICER,

WP(C)/15294/2021

AI Insights

The case involves Olam Agro India Private Limited challenging a notice issued under the unamended provisions of Section 148 of the Income Tax Act. The petitioner argued that following the amendments introduced by the Finance Act of 2021, the notice issued under the old provisions was no longer valid. The Supreme Court's judgment in Union of India (UOI) and others v. Ashish Agarwal, which addressed similar issues, was cited. The court's decision was to treat the notice as a show cause notice under the amended Section 148A(b), thereby allowing the proceedings to continue under the new legal framework.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 770884 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 13-06-2022
• Assessment Year: misc
• Other Referred Cases: Union of India (UOI) and others v. Ashish Agarwal [(2022) 444 ITR 1 (SC)]
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: ABRAHAM MARKOS; ISAAC ALEXANDER; JOSEPH SHWETHA PRABHAKAR
• Keywords: Amended Provisions; Income Tax; Notice; Show cause notice; Unamended provisions
• Section: 148; 148A

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 13TH DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 WP(C) NO. 15294 OF 2021 PETITIONER/S: OLAM AGRO INDIA PRIVATE LIMITED, TOWER A, 2ND FLOOR, DLF BUILDING NO.8, PHASE II, CYBER CITY, GURGAON, 122002, HARYANA, REPRESENTED BY ITS DIRECTOR, K.S. RAMARATHINAM. BY ADVS. ABRAHAM JOSEPH MARKOS ISAAC THOMAS ALEXANDER JOSEPH MARKOS SHWETHA PRABHAKAR RESPONDENT/S: 1 INCOME TAX OFFICER, WARD 1 AND TPS, KOLLAM, AAYAKAR BHAVAN, INCOME TAX OFFICE, NEAR KARBALA JUNCTION, RAILWAY STATION ROAD, KOLLAM, KOLLAM, KERALA-691001. 2 ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE 1, TRIVANDRUM, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695003. BY ADV CHRISTOPHER ABRAHAM,SC, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).15294/21 2 JUDGMENT This writ petition was filed challenging Ext.P1 notice dated 29.06.2021 issued under the unamended provisions of Section 148 of the Income Tax Act. It is the contention of the petitioner that after the amendments introduced by the Finance Act of 2021, a notice issued under the unamended provisions of Section 148 of the Act was incompetent. 2. When this matter is taken up today for consideration, it is submitted that the issue raised in the writ petition has now been settled in view of the judgment of the Hon'ble Supreme Court in Union of India (UOI) and others v. Ashish Agarwal [(2022) 444 ITR 1 (SC)]. Specific reference is made to paragraphs 10 and 11 of the above said judgment, which are extracted below for easy reference: \"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 148A of the IT Act as substituted by the Finance Act, 2021 and construed or treated to be showcause notices in terms of Section 148A(b). The assessing officer shall, within thirty days from today W.P(C).15294/21 3 provide to the respective Assessees information and material relied upon by the Revenue, so that the Asesees can reply to the showcause notices within two weeks thereafter; (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 onetime measure vis- à-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); (iv) 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. 11. The present order shall be applicable PAN INDIA and all judgments and orders passed by different High Courts on the issue and under which similar notices which were issued after 01.04.2021 issued under Section 148 of the Act are set aside and shall be governed by the present order and shall stand W.P(C).15294/21 4 modified to the aforesaid extent. The present order is passed in exercise of powers under Article 142 of the Constitution of India so as to avoid any further appeals by the Revenue on the very issue by challenging similar judgments and orders, with a view not to burden this Court with approximately 9000 appeals. We also observe that present order shall also govern the pending writ petitions, pending before various High Courts in which similar notices under Section 148 of the Act issued after 01.04.2021 are under challenge.\" By virtue of the judgment of the Supreme Court, the notice issued under the unamended provisions of Section 148 of the Income Tax Act will now be treated as a show cause notice under the amended provisions. Taking note of the above, this writ petition is disposed of making it clear that Ext.P1 notice shall be treated as a show cause notice issued under Section 148A(b) of the Income Tax Act and proceedings shall be completed as per the amended provisions and in accordance with the procedure prescribed. Writ petition is disposed of as above. Sd/- GOPINATH P. JUDGE okb/13.6.22 //True copy// PS to Judge W.P(C).15294/21 5 APPENDIX OF WP(C) 15294/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE IMPUGNED NOTICE DATED 29/06/2021 ISSUED BY THE 1ST RESPPONDENT. Exhibit P2 TRUE COPY OF THE ORDER DATED 13/07/2021 PASSED BY HON'BLE HIGH COURT OF DELHI IN WPC NO.6442/2021, WPC NO.6443/2021 AND WPC 6451/2021. Exhibit P2(A) TRUE COPY OF THE ORDER DATED 07/07/2021 PASSED BY HON'BLE 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 BOMBAY HIGH COURT IN WP(L) NO. 14687/2021. Exhibit P3(A) TRUE COPY OF THE ORDER DATED 05/07/2021 PASSED BY THE HON'BLE BOMBAY HIGH COURT IN WP NO. 1334/2021. Exhibit P3(B) TRUE COPY OF THE ORDER DATED 03/06/2021 PASSED BY THE HON'BLE BOMBAY HIGH COURT 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 TRTUE COPY OF TAXATION AND OTHER LAWS (RELAXATION OF CERTAIN PROVISIONS) ORDINANCE, 2020 DATED 31/03/2020. Exhibit P5 TRUE COPY OF TAXATION AND OTHER LAWS (RELAXATION AND AMENDMENT OF CERTAIN PROVISIONS) ACT 2020 DATED 29/09/2020. Exhibit P6 TRUE COPY OF THE NOTIFICATION DATED 24/06/2020 ISSUED UNDER THE RELAXATION ACT. Exhibit P6(A) TRUE COPY OF THE NOTIFICATION DATED 31/03/2021 ISSUED UNDER THE RELAXATION ACT. Exhibit P6(B) TRUE COPY OF THE NOTIFICATION DATED 27/04/2021 ISSUED UNDER THE RELAXATION ACT. W.P(C).15294/21 6 Exhibit P7 TRUE COPY OF THE JUDGMENT IN C B RICHARDS ELLIS MAURITIUS LIMITED VS. ADIT: 208 TAXMAN 322. Exhibit P7(A) TRUE COPY OF THE JUDGMENT IN K.M. SHARMA VS. ITO 254 ITR 772. Exhibit P7(B) TRUE COPY OF THE JUDGMENT IN MUNICIPAL COUNCIL PALAI VS. T.J. JOSEPH AND OTHERS AIR 1963. SC 1561. Exhibit P7(C) TRUE COPY OF THE JUDGMENT IN GKN DRIVESHAFTS (INDIA) LIMITED V. ITO 259 ITR 19. Exhibit P7(D) TRUE COPY OF THE JUDGMENT IN CIT V. VATIKA TOWNSHIP P. LIMITED 367 ITR 466 (SC). Exhibit P7(E) TRUE COPY OF THE JUDGMENT IN PR. CIT VS. HEADSTRONG SERVICES INDIA PVT. LIMITED, (2021) 125 TAXMANN.COM 262 (DELHI). Exhibit P7(F) THE TRUE COPY OF THE JUDGMENT IN ITO VS. M.C. PONNOOSE:75 ITR 174. Exhibit P7(G) TRUE COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT IN STATE OF MADHYA PRADESH AND OTHERS VS. G.S. DALL AND FLOUR MILLS AND ORS: 1992 SUPP (1) SCC 150. Exhibit P7(H) TRUE COPY OF THE JUDGMENT OF THE HONOURABLE SUPREMEN COURT IN CIT VS. ANJUM M.H. GHASWALA :252 ITR 1(SC). "