Ors v. Ashish Agarwal; (2022) 444 Itr 1 (Sc), Where It Hasbeen Held As Follows

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 8 DAY OF JULY 2022 / 17TH ASHADHA, 1944 WP(C) NO. 26171 OF 2021 PETITIONER: MANSOOR VENKITTA CHAKRATHODI,AGED 51 YEARSVENKITTA CHAKRATHODI HOUSE, PADAPPARAMBA, VATTALOOR, MALAPPURAM, PIN- 676 507.BY ADVS. LATHA ANAND M.N.RADHAKRISHNA MENON S.VISHNU (ARIKKATTIL) RESPONDENT: INCOME TAX OFFICER,WARD 2, TIRUR, OFFICE OF THE INCOME TAX OFFICER, CHEMBRA, TIRUR, MALAPPURAM DISTRICT, PIN 680 001. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON08.07.2022, ALONG WITH WP(C).17655/2021, 26860/2021, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 8 DAY OF JULY 2022 / 17TH ASHADHA, 1944WP(C) NO. 17655 OF 2021 PETITIONER: JAMAL MOHAMMED ARANHIKKALAGED 58 YEARSNO.476, ARANHIKKAL HOUSE, PATHAPPIRIYAM EDAVANNA, MALAPPURAM-676123. BY ADVS. LATHA ANAND K.R.PRAMOTH KUMAR S.VISHNU (ARIKKATTIL) RADHAKRISHNA PILLAI B SIDHARTH P.S. ROHITH MOHAN RESPONDENT: INCOME TAX OFFICERWARD-2, TIRUR, OFFICE OF THE INCOME TAX OFFICER, CHEMBRA, TIRUR, MALAPPURAM DISTRICT, PIN-680001. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON08.07.2022, ALONG WITH WP(C).26171/2021 AND CONNECTED CASES, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.26171 OF 2021 & conn.cases 3 IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 8 DAY OF JULY 2022 / 17TH ASHADHA, 1944WP(C) NO. 26860 OF 2021 PETITIONER: POPULAR PAINTSCALICUT ROAD, PERINTHALMANNA, MALAPPURAM, PIN - 679 322, REPRESENTED BY ITS MANAGING PARTNER SRI.V.USMAN. BY ADVS. LATHA ANAND M.N.RADHAKRISHNA MENON S.VISHNU (ARIKKATTIL) B.RADHAKRISHNA PILLAI SIDHARTH P.S. ROHITH MOHAN ARJUN VARMA RESPONDENT: INCOME TAX OFFICERWARD-2, TIRUR, OFFICE OF THE INCOME TAX OFFICER, CHEMBRA, TIRUR, MALAPPURAM DISTRICT, PIN - 680 001. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON08.07.2022, ALONG WITH WP(C).26171/2021 AND CONNECTED CASES, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.26171 OF 2021 & conn.cases 4 JUDGMENT [WP(C) Nos.26171/2021, 17655/2021, 26860/2021] The petitioners in these cases were issued with noticesunder Section 148 of the Income Tax Act. The petitioners haveapproached this Court stating that after the amendment broughtinto Section 148 by the Finance Act of 2021, the procedure underSection 148A had to be followed before re-assessmentproceedings were initiated by the Department. 2.Today, when the matter is taken up for consideration,it is the submission of the learned counsel appearing for thepetitioners in these cases that the matter now stands covered bythe judgment of the Supreme Court in Union of India (UOI) and Ors. v. Ashish Agarwal; (2022) 444 ITR 1 (SC), where it hasbeen held as follows:- “10. In view of the above and for the reasons stated above, thepresent Appeals are ALLOWED IN PART. The impugnedcommon judgments and orders passed by the High Court ofJudicature at Allahabad in W.T. No. 524/2021 and other alliedtax appeals/petitions, is/are hereby modified and substitutedas under:- “(i) The impugned section 148 notices issued to the respectiveAssessees which were issued under unamended section 148 ofthe IT Act, which were the subject matter of writ petitionsbefore the various respective High Courts shall be deemed to Ors. v. Ashish Agarwal; (2022) 444 ITR 1 (SC), where it hasbeen held as follows:- “10. In view of the above and for the reasons stated above, thepresent Appeals are ALLOWED IN PART. The impugnedcommon judgments and orders passed by the High Court ofJudicature at Allahabad in W.T. No. 524/2021 and other alliedtax appeals/petitions, is/are hereby modified and substitutedas under:- “(i) The impugned section 148 notices issued to the respectiveAssessees which were issued under unamended section 148 ofthe IT Act, which were the subject matter of writ petitionsbefore the various respective High Courts shall be deemed to have been issued under section 148 of the IT Act assubstituted by the Finance Act, 2021 and construed or treatedto be show-cause notices in terms of section 148A(b). Theassessing officer shall, within thirty days from today provide tothe respective Assessees information and material relied uponby the Revenue, so that the Assesees can reply to the show-cause notices within two weeks thereafter; (ii) The requirement of conducting any enquiry, if required,with the prior approval of specified authority under section148A(a) is hereby dispensed with as a one-time measure vis-a-vis those notices which have been issued under section 148 ofthe unamended Act from 01.04.2021 till date, including thosewhich have been quashed by the High Courts. Even otherwise as observed hereinabove holding any enquirywith the prior approval of specified authority is not mandatorybut it is for the concerned Assessing Officers to hold anyenquiry, if required; (iii) The assessing officers shall thereafter pass orders in termsof section 148A(d) in respect of each of the concernedAssessees; Thereafter after following the procedure asrequired under section 148A may issue notice under section148 (as substituted); All defences which may be available to the assesses includingthose available under section 149 of the IT Act and all rightsand contentions which may be available to the concernedAssessees and Revenue under the Finance Act, 2021 and inlaw shall continue to be available.” 3. The learned Standing Counsel appearing for the Department does not dispute the above position and states thatthe judgment of the Supreme Court covers these matters also. ats Accordingly, these writ petitions will stand disposed ofdirecting that notices issued under Section 148 of the Income Taxto the petitioners shall be treated as show-cause notices underSection 148A of the Income Tax Act. Thereafter, the proceedingsshall be completed in the manner directed by the Supreme Courtin the judgment referred to above. Sd/-GOPINATH P.JUDGE APPENDIX OF WP(C) 26171/2021 PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE NOTICE DATED 30.06.2021, ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT. UNDER SECTION 148 OF THE INCOME TAX ACT. EXHIBIT P2TRUE COPY OF NOTICE DATED 10.11.2021 UNDER SECTION 142(1) OF THE INCOME TAX ACT.142(1) OF THE INCOME TAX ACT. EXHIBIT P3TRUE COPY OF THE ORDER DATED 03.06.2021 IN WRIT PETITION (L) NO. 11766 OF 2021 OF BOMBY HIGH COURT.PETITION (L) NO. 11766 OF 2021 OF BOMBY HIGH COURT. EXHIBIT P4TRUE COPY OF THE INTERIM ORDER DATED 02.09.2021 IN W.P.C NO. 17655 OF 2021.W.P.C NO. 17655 OF 2021. EXHIBIT P5TRUE COPY OF INTERIM ORDER DATED 29.11.2021 IN W.P.CNO. 20476 OF 2021.NO. 20476 OF 2021. WP(C)NO.26171 OF 2021 & conn.cases 8 APPENDIX OF WP(C) 17655/2021 APPENDIX OF WP(C) 26860/2021 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE NOTICE DATED 30/06/2021, ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT.UNDER SECTION 148 OF THE INCOME TAX ACT. Exhibit P2TRUE COPY OF NOTICE DATED 10/11/2021 UNDER SECTION 142(1) OF THE INCOME TAX ACT.142(1) OF THE INCOME TAX ACT. Exhibit P3TRUE COPY OF THE ORDER DATED 03/06/2021 IN WRIT PETITION (L) NO.11766 OF 2021 OF BOMBAY HIGH COURT.PETITION (L) NO.11766 OF 2021 OF BOMBAY HIGH COURT. EXHIBIT P4TRUE COPY OF THE INTERIM ORDER DATED 02.09.2021 IN W.P.C NO. 17655 OF 2021.W.P.C NO. 17655 OF 2021. EXHIBIT P5TRUE COPY OF INTERIM ORDER DATED 29.11.2021 IN W.P.CNO. 20476 OF 2021.NO. 20476 OF 2021. WP(C)NO.26171 OF 2021 & conn.cases 8 APPENDIX OF WP(C) 17655/2021 APPENDIX OF WP(C) 26860/2021 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE NOTICE DATED 30/06/2021, ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT.UNDER SECTION 148 OF THE INCOME TAX ACT. Exhibit P2TRUE COPY OF NOTICE DATED 10/11/2021 UNDER SECTION 142(1) OF THE INCOME TAX ACT.142(1) OF THE INCOME TAX ACT. Exhibit P3TRUE COPY OF THE ORDER DATED 03/06/2021 IN WRIT PETITION (L) NO.11766 OF 2021 OF BOMBAY HIGH COURT.PETITION (L) NO.11766 OF 2021 OF BOMBAY HIGH COURT. Exhibit P4TRUE COPY OF THE INTERIM ORDER DATED 02/09/2021 IN WPC 17655 OF 2021.WPC 17655 OF 2021. Exhibit P5TRUE COPY OF INTERIM ORDER DATED 29/11/2021 IN WP(C) 20476 OF 2021.WP(C) 20476 OF 2021.