Provisions Of Section 151 Of The Act v. N. R. Borkar, J

Digitallysigned byMEERAMEERAMAHESHMAHESHJADHAVJADHAVDate:2022.04.2211:08:05+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 1204 OF 2022 Vishakha Accounting Services Pvt Ltd. V/s.Assistant Commissioner of Income TaxCircle 8(3)(1) Mumbai & Ors. ….Petitioner …Respondents ---- Mr. Prathamesh Kamat a/w Mr. Harsh L Behany, Ms Neena Shah, Mr. GauravGandhi a/w Ms Saloni Manjrekar i/b Mr. Harsh Behany for PetitionerMr. Suresh Kumar for Respondents ---- CORAM : K.R. SHRIRAM & N.R. BORKAR, JJ DATED : 20[th] APRIL 2022 P.C. : 1This petition has been served on respondents on 3[rd] March 2022 butno reply has been filed till date. On 29[th] March 2022, respondents weredirected to file an affidavit regarding the time of uploading the notice,which affidavit also has not been filed. 1 2Petitioner is impugning a notice dated 31[st] March 2021 issued underSection 148 of the Income Tax Act 1961 (the said Act) for A.Y.-2015-2016on various grounds. One such ground is that the sanction issued underSection 151 of the Act is not a valid sanction. Indisputably, the noticeimpugned has been issued more than four years after expiry of the relevantassessment year. It is petitioner’s case that the approval obtained for issuingthe said notice is from Additional Commissioner of Income Tax instead ofPrincipal Commissioner of Income Tax and hence is not accordance with mandates of Section 151 of the Act. Though, approval has not been placedon record, in paragraph 8 of the reasons recorded for re-opening it ismentioned “………… Hence necessary sanction to issue the notice underSection 148 has been obtained separately from the AdditionalCommissioner of Income Tax as per the provisions of Section 151 of theAct.” According to respondents the case at hand is within four years fromthe end of the assessment year under consideration, in view of extension oflimitation date due to Covid situation. The Assessing Officer has notexplained in the reasons recorded as to how the limitation date has gotextended. Mr. Suresh Kumar states that he is relying on Taxation and otherLaws (Relaxation of Certain Provisions) Act, 2020, by which limitation,inter alia, under provisions of Section 151(1) and Section 151(2), whichwere originally expiring on 31[st ]March 2020 stood extended to 31[st] March2021 and in view thereof, for the Assessment Year 2015-2016 which fallsunder the category within four years as on 31[st] March 2020, the statutoryapproval for issuance of notice under Section 148 of the Act was given bythe Additional Commissioner. 3Even if for a moment, we agree with Mr. Suresh Kumar, still it appliesto only cases where the limitation was expiring on 31[st] March 2020. In thecase at hand, the assessment year is 2015-2016 and, therefore, the six yearslimitation will expire only on 31[st] March 2022. Therefore, the Relaxation Actprovisions cannot be applicable. Even if, the time to issue notice isconsidered to have been extended, that would not amount to amending the provisions of Section 151 of the Act. 4In our view, for the case at hand, the approval ought to have beengiven by the Principal Chief Commissioner or Chief Commissioner orPrincipal Commissioner or Commissioner and not by the AdditionalCommissioner of Income Tax. We find support for this view in judgment ofthis court in Voltas Ltd. Vs. ACIT & Ors.1 and J.M.Financial and InvestmentConsultancy Services Pvt. Ltd. Vs. ACIT Circle 3(2)(1) & Ors.2 Therefore, onthis ground alone the impugned notice dated 31[st] March 2021 issued underSection 148 of the Act is quashed and set aside. Therefore, consequentialorders and notices will also have to go including the assessment order dated28[th] March 2022. 5Petition disposed with no order as to costs. (N. R. BORKAR, J.) (K.R. SHRIRAM, J.) 1. 2022 SCC Online Bom 741 2. Order dated 4[th] April 2022 in Writ Petition No.1050 of 2022