Skp Merchants Private Limited v. Income Tax Officer Ward 1(1), Kolkata, Income Tax Department And Anr

ORDER SHEET WPO/1132/2023IN THE HIGH COURT AT CALCUTTACONSTITUTIONAL WRIT JURISDICTIONORIGINAL SIDE SKP MERCHANTS PRIVATE LIMITEDVSINCOME TAX OFFICER WARD 1(1), KOLKATA, INCOME TAX DEPARTMENTAND ANR. BEFORE: The Hon'ble JUSTICE MD. NIZAMUDDIN Date: 12[th] June, 2023. Appearance:Mr. Anuj Singh, Adv.Ms. Trinisha De, Adv.Mr. Siddharth Ray, Adv.Mr. Arun Kumar Singh, Adv.…For the PetitionerMr. Vipul Kundalia, Adv.Mr. Anurag Roy, Adv.…For the Respondents The Court: Heard learned advocates appearing for the parties.Supplementary affidavit filed in Court be kept with the record. By this writ petition, petitioner has challenged the impugned orderdated 11[th] April, 2023 under Section 148A(d) of the Income Tax Act, 1961relating to assessment year 2019-20 on the ground that the same has beenpassed without approval from the “Specified Authority” as described underSection 151(ii) of the Income Tax Act, 1961 by contending that the approvalhas been taken from the Principal Commissioner of Income Tax whenadmittedly the specified authority for approval in this case is Principal CITsince three years has been passed from the end of the relevant assessmentyear on the date when the aforesaid impugned order was passed. Mr. Kundalia, learned advocate appearing for the respondent Income Tax Authority has brought to the notice of the Court the recent amendment under Section 151 of the Income Tax Act, 1961 which is relevant and isquoted as hereunder : “151. Specified authority for the purposes of section 148 and section 148A shall be, - (i)Principal Commissioner or Principal Director or Commissioneror Director, if three years or less than three years have elapsedfrom the end of the relevant assessment year ; (ii)Principal Chief Commissioner or Principal Director General orChief Commissioner or Director General, if more than threeyears have elapsed from the end of the relevant assessment year Provided that the period of three years for the purposes of clause (i)shall be computed after taking into account the period of limitation asexcluded by the third or fourth or fifth provisos or extended by the sixthproviso to sub-section (1) of section 149.” He has also drawn attention of the Court towards the recentamendment in Section 149(1) of the Income Tax Act and particularly fifthand sixth proviso under Section 149(1) of the Act which are quoted ashereunder : “Provided also that for the purposes of computing the period oflimitation as per this section, the time or extended time allowed to theassessee, as per show-cause notice issued under clause (b) of section 148Aor the period during which the proceeding under section 148A is stayed byan order or injunction of any court, shall be extended: Provided also that where immediately after the exclusion of the periodreferred to in the immediately preceding proviso, the period of limitation available to the Assessing Officer for passing an order under clause (d) ofsection 148A does not exceed seven days, such remaining period shall beextended to seven days and the period of limitation under this sub-sectionshall be deemed to be extended accordingly. Explanation.- For the purposesof clause (b) of this sub-section “asset” shall include immovable property,being land or building or both, shares or securities, loans and advances,deposits in bank account.” On a plain reading of the fifth proviso under Section 149(1) it appearsthat for the purposes of computing the period of limitation for passing orderunder Section 148A of the Act, the time or extended time is allowed to theassessing officer as per show-cause notice under clause (b) of section 148Aor the period during which the proceeding under section 148A is stayed byan order or injunction of any court which shall be excluded. On a plain reading of the fifth proviso under Section 149(1) it appearsthat for the purposes of computing the period of limitation for passing orderunder Section 148A of the Act, the time or extended time is allowed to theassessing officer as per show-cause notice under clause (b) of section 148Aor the period during which the proceeding under section 148A is stayed byan order or injunction of any court which shall be excluded. It also appears on a plain reading of the sixth proviso under Section149(1) of the Act that in addition to the time available to the assessingofficer for the purpose of limitation as per the aforesaid fifth proviso furthertime of seven days is available to him while computing the limitation periodfor the purpose of passing order under Section 148A(d) of the Act. It appears from record of this case and is admitted position that evenafter taking into consideration the period allowed under the aforesaid fifthand sixth proviso the order under Section 148A(d) of the Act with regard tothe issue of approval, it is not saved since more than seven days has beenexpired at the time of passing of the aforesaid impugned order even afterexcluding the period under the fifth proviso of the aforesaid section. Considering the facts and circumstances of this case andsubmissions of the parties and taking into consideration the aforesaidfactual and legal position, the impugned order under Section 148A(d) of theAct dated 11[th] April, 2023 is set aside and the case is remanded back to theassessing officer concerned to proceed afresh and pass order in accordancewith law and after observing principles of natural justice after givingopportunity of hearing to the petitioner or its authorised representative,within a period of eight weeks from the date of communication of this order,from the stage such irregularity has been committed in taking approval fromthe “specified authority”. With these observations and directions, this writ petition being WPO1132 of 2023 stands disposed of. TR/ (MD. NIZAMUDDIN, J.)