G D Goenka Tourism Corp Ltd v. Assistant Commissioner Of Incometax Central Circle 15 Delhi & Anr

$~65 IN THE HIGH COURT OF DELHI AT NEW DELHI +W.P.(C) 485/2025 G D GOENKA TOURISM CORP LTD .....Petitioner Through:Mr. Mani Bhadra Jain and Mr. PranavYadav, AdvocatesYadav, Advocates versus ASSISTANT COMMISSIONER OF INCOMETAX CENTRAL CIRCLE 15 DELHI & ANR .....Respondents Through:Mr. Indruj Singh Rai, SSC with Mr.Sanjeev Menon (JSC), Mr. RahulSingh (JSC), Mr. Anmol Jaaga andMr. Gaurav Kumar, AdvocatesSanjeev Menon (JSC), Mr. RahulSingh (JSC), Mr. Anmol Jaaga andMr. Gaurav Kumar, Advocates CORAM:HON'BLE THE ACTING CHIEF JUSTICEHON'BLE MR. JUSTICE TUSHAR RAO GEDELA O R D E R % 15.01.2025 CM APPL. 2244/2025 1.Exemption allowed subject to all just exceptions. 2.The application stands disposed of. W.P.(C) 485/2025 & CM APPL. 2243/2025 (Interim Relief) 3.Issue notice. The learned counsel for the Revenue accepts notice. 4.The petitioner has filed the present petition, inter alia, impugning anotice dated 25.09.2024 (hereafter the impugned notice) issued underSection 148 of the Income Tax Act, 1961 (hereafter the Act) in respect of theassessment year (AY) 2015-16. 5.The impugned notice is clearly beyond the period as stipulated under Section 149(1) of the Act. However, it is the Revenue’s case that theimpugned notice is within the time by virtue of Section 150 of the Act. TheRevenue claims that the impugned notice is premised on the ‘findings anddirections’ as embodied in the decision of the Supreme Court in PrincipalCommissioner of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd.:(2024) 2 SCC 433. In the said decision, the Supreme Court had held that incertain cases, the Assessing Officer (AO) could exercise its powers underSection 147/148 of the Act, even in cases which are related to a searchconducted under Section 132 of the Act or a requisition made under Section132 of the Act. The Revenue construes the decision as constituting a findingor a direction for issuing such notices in respect of cases such as that of theassessee’s. 6.The question whether the decision in the case ofPrincipalCommissioner of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd.(supra) constitutes a finding and a direction for permitting the issuance ofnotice under Section 148 of the Act in cases, which are otherwise beyondthe period as stipulated under Section 149 of the Act is no longer resintegra.This Court in the case of ARN Infrastructures India Ltd. v.Assistant Commissioner of Income Tax Cental Circle-28 Delhi & Ors.:NeutralCitationNo.:2024:DHC:7423-DBhadrejectedasimilarcontention. The relevant extract of the said decision is set out below: “38. It is pertinent to note that a reference toSections 147 and 148 of the Act in AbhisarBuildwell firstly appears in paragraph 33 of thereport and where the Supreme Court observed thatin cases where a search does not result in anyincriminatingmaterialbeingfound,theonly remedy that would be available to the Revenuewould be to resort to reassessment. 39. However, the Supreme Court caveated thatobservation by observing that the initiation ofreassessment would be “…..subject to fulfilment ofthe conditions mentioned in Sections 147/148, asin such a situation, the Revenue cannot be left withno remedy”. This sentiment came to be reiteratedwith the Supreme Court observing that the powerof the Revenue to initiate reassessment must besaved failing which it would be left with noremedy. It was thereafter observed in paragraph36.4 of the report that insofar as completed orunabated assessments were concerned, they couldbe reopened by the AO by invocation of Sections147/148 of the Act, subject to the fulfillment of theconditions“……as envisaged/mentioned underSections 147/148 of the Act and those powers aresaved”. 39. However, the Supreme Court caveated thatobservation by observing that the initiation ofreassessment would be “…..subject to fulfilment ofthe conditions mentioned in Sections 147/148, asin such a situation, the Revenue cannot be left withno remedy”. This sentiment came to be reiteratedwith the Supreme Court observing that the powerof the Revenue to initiate reassessment must besaved failing which it would be left with noremedy. It was thereafter observed in paragraph36.4 of the report that insofar as completed orunabated assessments were concerned, they couldbe reopened by the AO by invocation of Sections147/148 of the Act, subject to the fulfillment of theconditions“……as envisaged/mentioned underSections 147/148 of the Act and those powers aresaved”. 40. It thus becomes apparent that the liberty whichthe Supreme Court accorded and the limited rightinhering in the Revenue to initiate reassessmentwassubjecttothatpowerbeingotherwisecompliantwiththeChapterpertainingtoreassessmentascontainedintheAct.Theobservations of the Supreme Court cannot possiblybe read or construed as a carte blanche enablingthe respondents to overcome and override therestrictions that otherwise appear in Section 149 ofthe Act. The observations of the Supreme Court inAbhisar Buildwell were thus intended to merelyconveythattheannulmentofthesearchassessments would not deprive or denude the Revenue of its power to reassess and whichindependently existed. However, the SupremeCourt being mindful of the statutory prescriptions,which otherwise imbue the commencement ofreassessment,qualifiedthatobservationbyproviding that such an action would have to be inaccordance with law. This note of caution appearsat more than one place in that judgment and isapparent from the Supreme Court observing thatthe power to reassess would be subject to thefulfilment of the conditions mentioned in Sections147 and 148 of the Act.” 7.Plainly, the controversy involved in this petition is covered by thedecision of this Court in ARN Infrastructures India Ltd. v. AssistantCommissioner of Income Tax Cental Circle-28 Delhi & Ors. (supra). Thecontention that the time-period as stipulated under Section 149 of the Act isnot applicable, in the given facts, is erroneous and thus rejected. 8.The petition is, accordingly, allowed and the impugned notice is setaside. Pending application is also disposed of. VIBHU BAKHRU, ACJ JANUARY 15, 2025Aj TUSHAR RAO GEDELA, JClick here to check corrigendum, if any