Mansamata Vyaapar Private Limited v. Union Of India & Ors.with

05-05-2022Item No.17-19Subrata IN THE HIGH COURT AT CALCUTTAConstitutional Writ JurisdictionAppellate Side WPA No.4399 of 2022 Mansamata Vyaapar Private Limited -vs- Union of India & Ors.with WPA No.5068 of 2022 and WPA No.5910 of 2022 Mr. Avra Mazumdar Sk. Md. Bilwal Hossain Mr. Binayak Gupta Mr. K. Ray Mr. Pramit Bag Mr. Bimalendu Das Mr. Shomrik Das Mr. A. K. Mishra Mr. Balaram Patra …for the petitioners Mr. Amit Sharma …for the respondents In view of judgement of the Hon’ble SupremeCourt dated May 4, 2022 in the case of Union of India &Ors. v. Ashish Agarwal (Civil Appeal No.3005 of 2022),these writ petitions – WPA No.4399 of 2022, WPANo.5068 of 2022 and WPA No.5910 of 2022 –challenging the impugned notices under section 148 of theIncome Tax Act, 1961, under the old Act, issued after 31[st]March 2021 are dismissed. The interim orders in thematters stand vacated. The relevant paragraphs 10, 11 and 12 of theaforesaid judgement of the Supreme Court are quotedbelow:– “10. In view of the above and for the reasons stated above, thepresent Appeals are ALLOWED IN PART. The impugnedcommon judgements and orders passed by the High Court of Judicature at Allahabad in W.T. No. 524/2021 and other alliedtax appeals/petitions, is/are hereby modified and substituted asunder:– (i)The impugned section 148 notices issued to therespective assessees which were issued underunamended section 148 of the IT Act, which were thesubject matter of writ petitions before the variousrespective High Courts shall be deemed to have beenissued under section 148A of the IT Act as substitutedby the Finance Act, 2021 and construed or treated tobe show-cause notices in terms of section 148A(b).The assessing officer shall, within thirty days fromtoday provide to the respective assessees informationand material relied upon by the Revenue, so that theassessees can reply to the show-cause notices withintwo weeks thereafter;respective assessees which were issued underunamended section 148 of the IT Act, which were thesubject matter of writ petitions before the variousrespective High Courts shall be deemed to have beenissued under section 148A of the IT Act as substitutedby the Finance Act, 2021 and construed or treated tobe show-cause notices in terms of section 148A(b).The assessing officer shall, within thirty days fromtoday provide to the respective assessees informationand material relied upon by the Revenue, so that theassessees can reply to the show-cause notices withintwo weeks thereafter; (ii)The requirement of conducting any enquiry, ifrequired, with the prior approval of specifiedauthority under section 148A(a) is hereby dispensedwith as a one-time measure vis-à-vis those noticeswhich have been issued under section 148 of theunamended Act from 01.04.2021 till date, includingthose which have been quashed by the High Courts.required, with the prior approval of specifiedauthority under section 148A(a) is hereby dispensedwith as a one-time measure vis-à-vis those noticeswhich have been issued under section 148 of theunamended Act from 01.04.2021 till date, includingthose which have been quashed by the High Courts. Even otherwise as observed hereinabove holdingany enquiry with the prior approval of specifiedauthority is not mandatory but it is for the concernedAssessing Officers to hold any enquiry, if required;any enquiry with the prior approval of specifiedauthority is not mandatory but it is for the concernedAssessing Officers to hold any enquiry, if required;(iii)The assessing officers shall thereafter pass orders interms of section 148A(d) in respect of each of theconcerned assessees; Thereafter after following theprocedure as required under section 148A may issueunder section 148 (as substituted);terms of section 148A(d) in respect of each of theconcerned assessees; Thereafter after following theprocedure as required under section 148A may issueunder section 148 (as substituted); Even otherwise as observed hereinabove holdingany enquiry with the prior approval of specifiedauthority is not mandatory but it is for the concernedAssessing Officers to hold any enquiry, if required;any enquiry with the prior approval of specifiedauthority is not mandatory but it is for the concernedAssessing Officers to hold any enquiry, if required;(iii)The assessing officers shall thereafter pass orders interms of section 148A(d) in respect of each of theconcerned assessees; Thereafter after following theprocedure as required under section 148A may issueunder section 148 (as substituted);terms of section 148A(d) in respect of each of theconcerned assessees; Thereafter after following theprocedure as required under section 148A may issueunder section 148 (as substituted); (iv)All defences which may be available to the assesseesincluding those available under section 149 of the ITAct and all rights and contentions which may beavailable to the concerned assessees and Revenueunder the Finance Act, 2021 and in law shallcontinue to be available.including those available under section 149 of the ITAct and all rights and contentions which may beavailable to the concerned assessees and Revenueunder the Finance Act, 2021 and in law shallcontinue to be available. 11. The present order shall be applicable PAN INDIA andall judgments and orders passed by different High Courts on the issue and under which similar notices which were issuedafter 01.04.2021 issued under section 148 of the Act are setaside and shall be governed by the present order and shallstand modified to the aforesaid extent. The present order ispassed in exercise of powers under Article 142 of theConstitution of India so as to avoid any further appeals by theRevenue on the very issue by challenging similar judgmentsand orders, with a view not to burden this Court withapproximately 9000 appeals. We also observe that presentorder shall also govern the pending writ petitions, pendingbefore various High Courts in which similar notices underSection 148 of the Act issued after 01.04.2021 are underchallenge. 12. The impugned common judgments and orders passedby the High Court of Allahabad and the similar judgments andorders passed by various High Courts, more particularly, therespective judgments and orders passed by the various HighCourts particulars of which are mentioned hereinabove, shallstand modified/substituted to the aforesaid extent only.” Accordingly, the respondent-assessing officerconcerned shall proceed with the impugned reassessmentproceedings as per the guidelines and law laid down in theaforesaid judgement of the Hon’ble Supreme Court. [Md. Nizamuddin, J]