Dr.hariharan Sivaramakrishnan v. The Assistant Commissioner Of Income Tax, Circle-1 Nellai City Centre, Tiruchendhur Road, Rahmath Nagar, Tirunelveli-627 011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.03.2022 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN Dr.Hariharan Sivaramakrishnan ... Petitioner Vs. 1.The Assistant Commissioner of Income Tax, Circle-1 Nellai City Centre, Tiruchendhur Road, Rahmath Nagar, Tirunelveli-627 011. 2.The Joint Commissioner of Income Tax, Tirunelveli Range, Nellai City Centre, Tiruchendhur Road, Rahmath Nagar, Tirunelveli-627 011. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitutionof India, praying this Court to issue a Writ of Certiorari, callingfor the records on the file of the first Respondent in PAN No. and quash the impugned notice in ITBA/AST/S/148/2021-22/1032628634(1) issued under Section 148 of the Income Tax Act,1961 dated 23.04.2021 for the Assessment Year 2017-18 by the firstRespondent as illegal and without jurisdiction. For Petitioner : Mrs.Vandana VyasFor Respondents: Mr.N.Dilip Kumar Senior Standing Counsel W.P.(MD).No.5231 of 2022 M/s.Sree Jeyasakthi Saw Mill Represented by its Managing Director,Mr.P.Sanjeevkumar ... Petitionerhttps://hcservices.ecourts.gov.in/hcservices/ 1.The Income Tax Officer, Ward-4, Nellai City Centre, Tiruchendhur Road, Rahmath Nagar, Tirunelveli-627 011. 2.The Principal Commissioner of Income Tax, Madurai-1, CR BLDG, 2,V P Rathinasamy Nadar Road, Bibikulam, Madurai-625 021. ...Respondents Prayer: Writ Petition filed under Article 226 of the Constitutionof India, praying this Court to issue a Writ of Certiorari, callingfor the records on the file of the first Respondent in PANNo.AAUFS6780P and quash the impugned notice in ITBA/AST/S/148/2021-22/1033888783(1) issued under Section 148 of the Income Tax Act,1961 dated 30.06.2021 for the Assessment Year 2015-16 by the firstRespondent as illegal and without jurisdiction. COMMON ORDER In these writ petitions, both the learned counsel for thepetitioner and the learned Senior Standing Counsel for therespondents submits that the issue is now no longer in the light ofthe decision of this Court in batch of writ petitions in the case ofVellore Institute of Technology Vs Central Board of Direct Tax andothers in W.P.Nos.15019 of 2021 etc. Batch, dated 04.02.2022. 2. The petitioners in these writ petitions have challenged theimpugned notice issued on 23.04.2021 and 30.06.2021 in W.P(MD).Nos.5228 and 5231 of 2022 respectively. 3. Both Section 148 and Section 148 (A) of the Income Tax,which has been incorporated into the Income Tax Act with effect from01.04.2021, reads as under: 148. Issue of notice where income has escapedassessment. Before making the assessment, reassessment orrecomputation under section 147, and subject to theprovisions of section 148A, the Assessing Officer shallserve on the assessee a notice, along with a copy of theorder passed, if required, under clause (d) of sectionhttps://hcservices.ecourts.gov.in/hcservices/ 148A, requiring him to furnish within such period, as maybe specified in such notice, a return of his income or theincome of any other person in respect of which he isassessable under this Act during the previous yearcorresponding to the relevant assessment year, in theprescribed form and verified in the prescribed manner andsetting forth such other particulars as may be prescribed;and the provisions of this Act shall, so far as may be,apply accordingly as if such return were a return requiredto be furnished under section 139: 148A, requiring him to furnish within such period, as maybe specified in such notice, a return of his income or theincome of any other person in respect of which he isassessable under this Act during the previous yearcorresponding to the relevant assessment year, in theprescribed form and verified in the prescribed manner andsetting forth such other particulars as may be prescribed;and the provisions of this Act shall, so far as may be,apply accordingly as if such return were a return requiredto be furnished under section 139: Provided that no notice under this section shall beissued unless there is information with the AssessingOfficer which suggests that the income chargeable to taxhas escaped assessment in the case of the assessee for therelevant assessment year and the Assessing Officer hasobtained prior approval of the specified authority toissue such notice. Explanation 1.—For the purposes ofthis section and section 148A, the information with theAssessing Officer which suggests that the incomechargeable to tax has escaped assessment means,— (i) any information flagged in the case of theassessee for the relevant assessment year in accordancewith the risk management strategy formulated by the Boardfrom time to time; (ii) any final objection raised by the Comptrollerand Auditor General of India to the effect that theassessment in the case of the assessee for the relevantassessment year has not been made in accordance with theprovisions of this Act. Explanation 2.—For the purposes of this section,where,— (i) a search is initiated under section 132 or booksof account, other documents or any assets arerequisitioned under section 132A, on or after the 1st dayof April, 2021, in the case of the assessee; or (ii) a survey is conducted under section 133A, otherthan under sub-section (2A) or subsection (5) of thatsection, on or after the 1st day of April, 2021, in thecase of the assessee; or https://hcservices.ecourts.gov.in/hcservices/ (iii) the Assessing Officer is satisfied, with theprior approval of the Principal Commissioner orCommissioner, that any money, bullion, jewellery or othervaluable article or thing, seized or requisitioned undersection 132 or section 132A in case of any other person onor after the 1st day of April, 2021, belongs to theassessee; or (iv) the Assessing Officer is satisfied, with theprior approval of Principal Commissioner or Commissioner,that any books of account or documents, seized orrequisitioned under section 132 or section 132A in case ofany other person on or after the 1st day of April, 2021,pertains or pertain to, or any information containedtherein, relate to, the assessee, the Assessing Officer shall be deemed to haveinformation which suggests that the income chargeable totax has escaped assessment in the case of the assessee forthe three assessment years immediately preceding theassessment year relevant to the previous year in which thesearch is initiated or books of account, other documentsor any assets are requisitioned or survey is conducted inthe case of the assessee or money, bullion, jewellery orother valuable article or thing or books of account ordocuments are seized or requisitioned in case of any otherperson. Explanation 3.—For the purposes of this section,specified authority means the specified authority referredto in section 151. 148A. Conducting inquiry, providing opportunitybefore issue of notice under section 148. The Assessing Officer shall, before issuing anynotice under Section 148,- (a) conduct any enquiry, if required, with the priorapproval of specified authority, with respect to theinformation which suggests that the income chargeable totax has escaped assessment; Explanation 3.—For the purposes of this section,specified authority means the specified authority referredto in section 151. 148A. Conducting inquiry, providing opportunitybefore issue of notice under section 148. The Assessing Officer shall, before issuing anynotice under Section 148,- (a) conduct any enquiry, if required, with the priorapproval of specified authority, with respect to theinformation which suggests that the income chargeable totax has escaped assessment; (b) provide an opportunity of being heard to theassessee, with the prior approval of specified authority,by serving upon him a notice to show cause within suchtime, as may be specified in the notice, being not lessthan seven days and but not exceeding thirty days from thedate on which such notice is issued, or such time, as maybe extended by him on the basis of an application in thisbehalf, as to why a notice under section 148 should not beissued on the basis of information which suggests thathttps://hcservices.ecourts.gov.in/hcservices/ income chargeable to tax has escaped assessment in hiscase for the relevant assessment year and results ofenquiry conducted, if any, as per clause (a); (c) consider the reply of assessee furnished, if any,in response to the show-cause notice referred to in clause(b); (d) decide, on the basis of material available onrecord including reply of the assessee, whether or not itis a fit case to issue a notice under section 148, bypassing an order, with the prior approval of specifiedauthority, within one month from the end of the month inwhich the reply referred to in clause (c) is received byhim, or where no such reply is furnished, within one monthfrom the end of the month in which time or extended timeallowed to furnish a reply as per clause (b) expires: Provided that the provisions of this section shallnot apply in a case where,— (a) a search is initiated under section 132 or booksof account, other documents or any assets arerequisitioned under section 132A in the case of theassessee on or after the 1st day of April, 2021; or (b) the Assessing Officer is satisfied, with theprior approval of the Principal Commissioner orCommissioner that any money, bullion, jewellery or othervaluable article or thing, seized in a search undersection 132 or requisitioned under section 132A, in thecase of any other person on or after the 1st day of April,2021, belongs to the assessee; or (c) the AssessingOfficer is satisfied, with the prior approval of thePrincipal Commissioner or Commissioner that any books ofaccount or documents, seized in a search under section 132or requisitioned under section 132A, in case of any otherperson on or after the 1st day of April, 2021, pertains orpertain to, or any information contained therein, relateto, the assessee. Explanation.—For the purposes of this section,specified authority means the specified authority referredto in section 151. 4. The Hon’ble Division Bench after examining the issues hasconcluded as under: “19. In view of the ratio propounded by theAllahabad and Delhi High Courts on the subject, thereassessment notices under Section 148 of the Act of 1961served on the petitioners on or after 1.4.2021 are sethttps://hcservices.ecourts.gov.in/hcservices/aside having been issued in reference to the unamended provisions and the Explanations are to be read asapplicable to reassessment proceedings if initiated on orprior to 31.3.2021, but it would be with liberty to theassessingauthoritiestoinitiatereassessmentproceedings in accordance with the provisions of the Actof 1961, as amended by the Finance Act, 2021, aftermaking all the compliances as required by law, iflimitation for it survives.With the aforesaid observations, all the writpetitions are disposed of. There shall be no order as tocosts. Consequently, the connected miscellaneouspetitions are closed.” provisions and the Explanations are to be read asapplicable to reassessment proceedings if initiated on orprior to 31.3.2021, but it would be with liberty to theassessingauthoritiestoinitiatereassessmentproceedings in accordance with the provisions of the Actof 1961, as amended by the Finance Act, 2021, aftermaking all the compliances as required by law, iflimitation for it survives.With the aforesaid observations, all the writpetitions are disposed of. There shall be no order as tocosts. Consequently, the connected miscellaneouspetitions are closed.” 5. These writ petitions stand allowed with the aboveobservations in paragraph 19 of the aforesaid case of the Hon’bleFirst Bench of this Court. No costs. Consequently, the connectedMiscellaneous Petitions are closed. // True Copy // Assistant Registrar (Records) / /2022Sub Assistant Registrar(CS) sn To 1.The Assistant Commissioner of Income Tax, Circle-1 Nellai City Centre, Tiruchendhur Road, Rahmath Nagar, Tirunelveli-627 011.2.The Joint Commissioner of Income Tax, Tirunelveli Range, Nellai City Centre, Tiruchendhur Road, Rahmath Nagar, Tirunelveli-627 011. 3.The Income Tax Officer, Ward-4, Nellai City Centre,https://hcservices.ecourts.gov.in/hcservices/ Tiruchendhur Road, Rahmath Nagar, Tirunelveli-627 011.4.The Principal Commissioner of Income Tax, Madurai-1, CR BLDG, 2,V P Rathinasamy Nadar Road, Bibikulam, Madurai-625 021. +2 CC to M/s.N.DILIPKUMAR, Advocate ( SR-14698,14699[F] dated25/03/2022 )+2 CC to M/s.M.P.SENTHIL, Advocate ( SR-14754,14753[F] dated28/03/2022 ) RK(13/04/2022) 7P 9C W.P(MD).Nos.5228 and 5231 of 2022 24.03.2022