Chandra Shekhar, Son Of Shri Anirudh Prasad Yadav, Resident Of Bhelwa,Ward v. Principal Commissioner Of Income Tax-1

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.8351 of 2024 ====================================================== Chandra Shekhar, son of Shri Anirudh Prasad Yadav, resident of Bhelwa,Ward No. 3, Matiahi, S. Simraha, Madhepura, Bihar-852121. ... ... Petitioner/s Versus 1.Principal Commissioner of Income Tax-1 having its office at Bir ChandPatel Path, Central Revenue Building, Patna-800001.Patel Path, Central Revenue Building, Patna-800001. 2.Income Tax Officer, Ward 4(1), 4th Floor, Loknayak Jai Prakash Bhawan,Patna.Patna. ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRAORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 05-02-2025 In the instant petition, petitioner has prayed for following reliefs:- “i) the notice dated 30.04.2024 (as containedin Annexure-P 6) under Section 148 ofthe Income Tax Act, 1961 issued by therespondent no. 2 for the Assessment Year2020-21 beyond the time limit andquantum as prescribed in Section 149 ofthe Act be quashed. 2/10 ii) the order dated 30.04.2024 (as containedin Annexure-P 5) under Section 148A (d)passed by the respondent no. 2 for theAssessment Year 2020-21 withoutconsideration of the reply filed bequashed.in Annexure-P 5) under Section 148A (d)passed by the respondent no. 2 for theAssessment Year 2020-21 withoutconsideration of the reply filed bequashed. iii) for granting any other relief(s) to whichthe petitioner is otherwise found entitledto.”the petitioner is otherwise found entitledto.” 2. Petitioner is income tax assessee for the assessmentyear 2020-21. Notice was issued to the petitioner on 28.03.2024under Section 148 A (Clause b) of the Income Tax Act, 1961(For short ‘Act’). Petitioner had submitted reply on 31.03.2024.Pursuant to the petitioner’s reply yet another notice was issuedon 22.04.2024 to the petitioner and he had submitted reply on25.04.2024. Consequently, proceedings under Section 148A (d)of the Act was issued on 30[th] April, 2024. Thus, petitioner isfeeling aggrieved by Annexure-P5 dated 30[th] April, 2024 readwith Annexure- P6 dated 30[th] April, 2024. Impugned order andnotice is prima facie pre-mature. 3. Learned counsel for the petitioner vehementlycontended that Assessing Officer has no jurisdiction insofar asundertaking assessment for the year 2020-21 after 31.03.2024with reference to second notice issued on 22.04.2024(Annexure-P3) read with consequential proceedings likepetitioner’s reply on 25.04.2024 and order dated 30[th] April, 2024 followed by notice dated 30[th] April, 2024 to the extent that itwas beyond the time limit stipulated in the light of Section 149(1)(a) of the Act. In support of the aforementioned submissionhe is relying on decision of the Hon’ble Supreme Court in thecase of Union of India & Ors. Vs. Rajeev Bansal in CivilAppeal No. 8629 of 2024 decided on 3[rd] October, 2024. He isrelying on para 46, 49, 52, and 53 of the aforesaid decision.Therefore, from the inception Assessing Officer has nojurisdiction to assess for the assessment year 2020-21. The dateof notice is taken as 22.04.2024 followed by further action on30[th] April, 2024 (Annexure- P5 and P6). He is insisting uponSection 148A(b) of the Act. Notice dated 22.04.2024 is requiredto be taken note of read with 5[th] Proviso and 6[th] Proviso toSection 149(1) of the Act. 4. Combined reading of the aforementioned clausesread with the facts of the case that from the date of secondnotice dated 22.04.2024 and not 1[st] notice dated 28.03.2024 isrequired to be taken into consideration and it is beyond timelimit stipulated. 5. Per contra, learned counsel for the respondents-Revenue submitted that time lapses in the present case is on 1[st]April, 2024. On the other hand, notice was issued on 28.03.2024 4. Combined reading of the aforementioned clausesread with the facts of the case that from the date of secondnotice dated 22.04.2024 and not 1[st] notice dated 28.03.2024 isrequired to be taken into consideration and it is beyond timelimit stipulated. 5. Per contra, learned counsel for the respondents-Revenue submitted that time lapses in the present case is on 1[st]April, 2024. On the other hand, notice was issued on 28.03.2024 and it is within the time limit stipulated. Petitioner hadsubmitted reply on 31.03.2024 seeking certain materialinformation, resultantly, Revenue were compelled to issue onemore notice on 22.04.2024, thereafter petitioner has filed replyon 25.04.2024, resultantly, on 30[th] April, 2024, the impugnedaction has been taken. Therefore, if the first notice dated28.03.2024 is taken into consideration in that event there is notime bar so as to contend that Assessing Officer has nojurisdiction. 6. Learned counsel for the respondents relying onSection 149 (1)(a), Proviso 5[th] and 6[th] which would aid thedecision of the Revenue from the inception, i.e. issuance ofnotice dated 28.03.2024 and consequential proceedings. Merelyissuing second notice on 22.04.2024 it does not mean that forthe first time Revenue have taken up the matter on 22.04.2024.On the other hand, as on 22.04.2024 notice has been issuedpursuant to certain material information sought by the petitionervide his reply to the notice dated 28.03.2024 on 31.03.2024.Therefore, first notice issued on 28.03.2024 is a crucial date forthe purpose of taking action by the Assessing Officer and it iswithin the purview of law. 7. Heard learned counsels for the respective parties. 8. Short question for consideration in the present lis iswhether Assessing Officer has jurisdiction to undertakeassessment for the year 2020-21 before 01.04.2024 or not?Perusal of the dates and event it is evident that Assessing Officerhad issued notice under Section 148A Clause (b) on 28.03.2024which is much earlier to the time-limit stipulated, i.e. withinthree years. Petitioner’s contention that for the purpose oflimitation number of days is required to be counted from thedate of notice dated 22.04.2024. It is to be noted that noticedated 22.04.2024 was issued (Annexure-P3) pursuant to thepetitioner’s reply to the notice dated 28.03.2024, i.e. reply dated31.03.2024. It is necessary to re-produce para 3 to 6 of replydated 31.03.2024 and it reads as under:- “3. That the petitioner states that he has not anykind of undisclosed income tune of Rs.33,95,876/-. The information flagged on theinsight portal is not correct.kind of undisclosed income tune of Rs.33,95,876/-. The information flagged on theinsight portal is not correct. 4. That petitioner states that if the income taxdepartment is in possession of such type ofinformation then it is requested your honourto kindly provide the relevant details. It isalso requested your honour to kindly providethe report of DDIT Investigation, Bhagalpuron which enquiry proceeding under section148A of the Income Tax Act 1961 has beeninitiated.department is in possession of such type ofinformation then it is requested your honourto kindly provide the relevant details. It isalso requested your honour to kindly providethe report of DDIT Investigation, Bhagalpuron which enquiry proceeding under section148A of the Income Tax Act 1961 has beeninitiated. 5. That it is to further submits that assesee isnot in the position to give the appropriatereply in absence of the proper information.not in the position to give the appropriatereply in absence of the proper information. 6. Therefore, it is requested your honour tokindly provide the proper information ordetails as mentioned in para 4 of this replyso that assesse can submits his reasonablereply for your kind consideration.”kindly provide the proper information ordetails as mentioned in para 4 of this replyso that assesse can submits his reasonablereply for your kind consideration.” 5. That it is to further submits that assesee isnot in the position to give the appropriatereply in absence of the proper information.not in the position to give the appropriatereply in absence of the proper information. 6. Therefore, it is requested your honour tokindly provide the proper information ordetails as mentioned in para 4 of this replyso that assesse can submits his reasonablereply for your kind consideration.”kindly provide the proper information ordetails as mentioned in para 4 of this replyso that assesse can submits his reasonablereply for your kind consideration.” 9. There was no occasion for the Revenue to issuenotice on 22.04.2024, if the petitioner’s contention in reply tothe notice dated 31.03.2024, in particularly, para 3 to 6,therefore, proceedings have been initiated by issuing notice on28.03.2024. If proceedings commenced on 28.03.2024 insofaras issuing notice under Section 148A Clause (b) which is therelevant and crucial date for the purpose of taking note oflimitation period. 10. Learned counsel for the petitioner relied on the decision in the case of Rajeev Bansal (supra), para 46, 49, 52and 53 read as under:- “46. The ingredients of the proviso could bebroken down for analysis as follows:broken down for analysis as follows: (i) no notice under Section 148 of the newregime can be issued at any time for anassessment year beginning on or before 1April 2021; (ii) if it is barred at the timewhen the notice is sought to be issuedbecause of the “time limits specified underthe provisions of 149(1)(b) of the oldregime. Thus, a notice could be issued underSection 148 of the new regime forassessment year 2021-2022 and before onlyif the time limit for issuance of such noticecontinued to exist under Section 149(1)(b)of the old regime.regime can be issued at any time for anassessment year beginning on or before 1April 2021; (ii) if it is barred at the timewhen the notice is sought to be issuedbecause of the “time limits specified underthe provisions of 149(1)(b) of the oldregime. Thus, a notice could be issued underSection 148 of the new regime forassessment year 2021-2022 and before onlyif the time limit for issuance of such noticecontinued to exist under Section 149(1)(b)of the old regime. 49. The first proviso to Section 149(1)(b)requires the determination of whether thetime limit prescribed under Section 149(1)(b) of the old regime continues to exist forthe assessment year 2021-2022 and before.Resultantly, a notice under Section 148 ofthe new regime cannot be issued if theperiod of six years from the end of therelevant assessment year has expired at thetime of issuance of the notice. This alsoensures that the new time limit of ten yearsprescribed under Section 149(1)(b) of thenew regime applies prospectively. Forexample, for the assessment year 2012-2013, the ten year period would haveexpired on 31 March 2023, while the sixyear period expired on 31 March 2019.Without the proviso to Section 149(1)(b) ofthe new regime, the Revenue could have hadthe power to reopen assessments for the year2012-2013 if the escaped assessmentamounted to Rupees fifty lakhs or more. Theproviso limits the retrospective operation ofSection 149(1)(b) to protect the interests ofthe assesses.requires the determination of whether thetime limit prescribed under Section 149(1)(b) of the old regime continues to exist forthe assessment year 2021-2022 and before.Resultantly, a notice under Section 148 ofthe new regime cannot be issued if theperiod of six years from the end of therelevant assessment year has expired at thetime of issuance of the notice. This alsoensures that the new time limit of ten yearsprescribed under Section 149(1)(b) of thenew regime applies prospectively. Forexample, for the assessment year 2012-2013, the ten year period would haveexpired on 31 March 2023, while the sixyear period expired on 31 March 2019.Without the proviso to Section 149(1)(b) ofthe new regime, the Revenue could have hadthe power to reopen assessments for the year2012-2013 if the escaped assessmentamounted to Rupees fifty lakhs or more. Theproviso limits the retrospective operation ofSection 149(1)(b) to protect the interests ofthe assesses. 52. In Ashish Agarwal (supra), this Court heldthat the benefit of the new regime must beprovided for the reassessment conducted forthe past periods. The increase of themonetary threshold from Rupees one lakh toRupees fifty lakh is beneficial for theassesses. Mr. Venkataraman has alsoconceded on behalf of the Revenue that allnotices issued under the new regime byinvoking the six year time limit prescribedunder Section 149(1)(b) of the old regimewill have to be dropped if the incomechargeable to tax which has escapedassessment is less than Rupees fifty lakhs.that the benefit of the new regime must beprovided for the reassessment conducted forthe past periods. The increase of themonetary threshold from Rupees one lakh toRupees fifty lakh is beneficial for theassesses. Mr. Venkataraman has alsoconceded on behalf of the Revenue that allnotices issued under the new regime byinvoking the six year time limit prescribedunder Section 149(1)(b) of the old regimewill have to be dropped if the incomechargeable to tax which has escapedassessment is less than Rupees fifty lakhs. 53. The position of law which can be derivedbased on the above discussion may besummarized thus: (i) Section 149(1) of thebased on the above discussion may besummarized thus: (i) Section 149(1) of the 53. The position of law which can be derivedbased on the above discussion may besummarized thus: (i) Section 149(1) of thebased on the above discussion may besummarized thus: (i) Section 149(1) of the new regime is not prospective. It alsoapplies to past assessment years; (ii) Thetime limit of four years if now reduced tothree years for all situations. The Revenuecan issue notices under Section 148 of thenew regime only if three years or less haveelapsed from the end of the relevantassessment year; (iii) the proviso to Section149(1)(b) of the new regime stipulates thatthe Revenue can issue reassessment noticesfor past assessment years only if the timelimit survives according to Section 149(1)(b) of the old regime, that is, six years fromthe end of the relevant assessment year; and(iv) all notices issued invoking the time limitunder Section 149(1)(b) of the old regimewill have to be dropped if the incomechargeable to tax which has escapedassessment is less than Rupees fifty lakhs.” Reading of the aforementioned decision, it does not assist the petitioner in view of the fact that there was nointerpretation of Section 149(1)(a) which provision is involvedin the present writ petition. On the other hand, judgment in thecase of Rajeev Bansal (supra) is in respect of Section 149(1)(b).It is necessary to re-produce Section 149(1), 5[th] Proviso and 6[th]Proviso which are relied on by both the learned counsels and itread as under:- “149. Time limit for notice.- (1) No noticeunder section 148 shall be issued for therelevant assessment year,-under section 148 shall be issued for therelevant assessment year,- (a) if three years have elapsed from the endof the relevant assessment year, unlessthe case falls under clause (b);of the relevant assessment year, unlessthe case falls under clause (b); (b) if three years, but not more than tenyears, have elapsed from the end of theyears, have elapsed from the end of the relevant assessment year unless theAssessing Officer has in his possessionbooks of accounts or other documents orevidence which reveal that the incomechargeable to tax, represented in theform of asset, which has escapedassessment amounts to or is likely toamount to fifty lakh rupees or more forthat year: 5[th] Proviso Provided also that for the purposes ofcomputing the period of limitation asper this section, the time or extendedtime allowed to the assessee, as pershow-cause notice issued under clause(b) of section 148A or the period duringwhich the proceeding under section148A is stayed by an order or injunctionof any court, shall be excluded. 6[th] Proviso Provided also that where immediatelyafter the exclusion of the periodreferred to in the immediatelypreceding proviso, the period oflimitation available to the AssessingOfficer for passing an order underclause (d) of section 148A is less thanseven days, such remaining period shallbe extended to seven days and theperiod of limitation under this sub-section shall be deemed to be extendedaccordingly.” 11. Combined reading of 5[th] and 6[th] Proviso, it iscrystal clear that delay is required to be taken note of withreference to notice. In the present case notice means first noticeissued on 28.03.2024 and it is within the time-limit stipulatedand Assessing Officer has jurisdiction. 12. In view of these facts and circumstances, thepresent writ petition is pre-mature. Accordingly, the present writpetition stands disposed of reserving liberty to the petitioner toparticipate in the process undertaken by the Revenue in the lightof impugned order and notice and co-operate. 13. C.W.J.C. No. 8351 of 2024 is disposed of. (P. B. Bajanthri, J) (Sunil Dutta Mishra, J) rakhi/- AFR/NAFRNAFRCAV DATEN.A.Uploading Date15.02.2025Transmission Date