Union Of India (Uoi) And Ors v. Ashish Agarwal; (2022) 444 Itr

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22 DAY OF JUNE 2022 / 1ST ASHADHA, 1944WP(C) NO. 27594 OF 2021 PETITIONER: MOHAMMED THRASSERIAGED 54 YEARSRINOOS HARDWARE, DD MALAPPURAM, KERALA PIN 676 521BY ADVS.LATHA ANANDM.N.RADHAKRISHNA MENONS.VISHNU (ARIKKATTIL) RESPONDENT: INCOME TAX OFFICERWARD 1(3), KOZHIKKODE, OFFICE OF THE INCOME TAX OFFICER, AAYAKAR BHAVAN, NORTH BLOCK, NEW ANNEXE BUILDING, MANANCHIRA, KOZHIKODE, KERALA 673 001 OTHER PRESENT: SRI. CHRISTOPHER ABHARAM (SC)THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON22.06.2022, ALONG WITH WP(C).27569/2021, 27529/2021, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22 DAY OF JUNE 2022 / 1ST ASHADHA, 1944WP(C) NO. 27569 OF 2021 PETITIONER: UNNIAN KUTTYAGED 66 YEARSKIZHAKKEKUNNUMMAL HOUSE, CHENGARA, IRIVETTY PO KAVANOOR, MALAPPURAM, PIN-673 639.BY ADVS.LATHA ANANDM.N.RADHAKRISHNA MENON RESPONDENT: INCOME TAX OFFICERWARD-1 & TPS, TIRUR, OFFICE OF THE INCOME TAX OFFICER, NO.20/1240, TARIFF BAZAR, TOWNHALL ROAD, TIRUR, KERALA,PIN-676 101. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON22.06.2022, ALONG WITH WP(C).27594/2021 AND CONNECTED CASES, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22 DAY OF JUNE 2022 / 1ST ASHADHA, 1944WP(C) NO. 27529 OF 2021 PETITIONER: M/S. PAINT SHOPEE,PANDIKKAD, MALAPPURAM, KERALA 676 521, REPRESENTED BY ITS MANAGING PARTNER, SRI. SHAMEER BABU.BY ADVS.LATHA ANANDM.N.RADHAKRISHNA MENONS.VISHNU (ARIKKATTIL) RESPONDENT: INCOME TAX OFFICER,WARD-2, TIRUR,OFFICE OF THE INCOME TAX OFFICER, CHEMBRA, TIRUR, MALAPPURAM DISTRICT 680 001. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENTTHIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON22.06.2022, ALONG WITH WP(C).27594/2021 AND CONNECTED CASES, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT [WP(C) Nos.27594/2021, 27569/2021, 27529/2021] The petitioners in these cases were issued with notices under Section148 of the Income Tax Act. The petitioners have approached this Courtstating that after the amendment brought into Section 148 by the Finance Actof 2021, the procedure under Section 148A had to be followed beforere-assessment proceedings were initiated by the Department. 2.Today, when the matter is taken up for consideration, it is thesubmission of the learned counsel appearing for the petitioners in these casesthat the matter now stands covered by the judgment of the Supreme Court in Union of India (UOI) and Ors. v. Ashish Agarwal; (2022) 444 ITR 1 (SC), where it has been held as follows:- “10. In view of the above and for the reasons stated above, thepresent Appeals are ALLOWED IN PART. The impugned commonjudgments and orders passed by the High Court of Judicature atAllahabad in W.T. No. 524/2021 and other allied taxappeals/petitions, is/are hereby modified and substituted asunder:- “(i) The impugned section 148 notices issued to the respectiveAssessees which were issued under unamended section 148 of the ITAct, which were the subject matter of writ petitions before thevarious respective High Courts shall be deemed to have been issuedunder section 148 of the IT Act as substituted by the Finance Act,2021 and construed or treated to be show-cause notices in terms ofsection 148A(b). The assessing officer shall, within thirty days fromtoday provide to the respective Assessees information and materialrelied upon by the Revenue, so that the Assesees can reply to theshow-cause notices within two weeks thereafter; “(i) The impugned section 148 notices issued to the respectiveAssessees which were issued under unamended section 148 of the ITAct, which were the subject matter of writ petitions before thevarious respective High Courts shall be deemed to have been issuedunder section 148 of the IT Act as substituted by the Finance Act,2021 and construed or treated to be show-cause notices in terms ofsection 148A(b). The assessing officer shall, within thirty days fromtoday provide to the respective Assessees information and materialrelied upon by the Revenue, so that the Assesees can reply to theshow-cause notices within two weeks thereafter; (ii) The requirement of conducting any enquiry, if required, withthe prior approval of specified authority under section 148A(a) ishereby dispensed with as a one-time measure vis-a-vis thosenotices which have been issued under section 148 of the unamendedAct from 01.04.2021 till date, including those which have beenquashed by the High Courts. Even otherwise as observed hereinabove holding any enquiry withthe prior approval of specified authority is not mandatory but it isfor the concerned Assessing Officers to hold any enquiry, ifrequired; (iii)The assessing officers shall thereafter pass orders in terms ofsection 148A(d) in respect of each of the concerned Assessees;Thereafter after following the procedure as required under section148A may issue notice under section 148 (as substituted); All defences which may be available to the assesses including thoseavailable under section 149 of the IT Act and all rights andcontentions which may be available to the concerned Assessees andRevenue under the Finance Act, 2021 and in law shall continue tobe available.” 3.The learned Standing Counsel appearing for the Department does not dispute the above position and states that the judgment of the SupremeCourt covers these matters also. Accordingly, these writ petitions will stand disposed of directing thatnotices issued under Section 148 of the Income Tax to the petitioners shall betreated as show-cause notices under Section 148A of the Income Tax Act.Thereafter, the proceedings shall be completed in the manner directed by theSupreme Court in the judgment referred to above. Sd/- acd GOPINATH P. JUDGE APPENDIX OF WP(C) 27569/2021 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE NOTICE DATED 30.6.2021, ISSUED 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. Exhibit P3TRUE COPY OF THE ORDER DATED 3.6.2021 IN WRITPETITION (L) NO.11766 OF 2021 BOMBAY HIGH COURT. Exhibit P4TRUE COPY OF THE INTERIM ORDER DATED 2.9.2021IN WPC 17655 OF 2021. Exhibit P5TRUE COPY OF INTERIM ORDER DATED 29.9.2021 INWPC 20476 OF 2021. APPENDIX OF WP(C) 27529/2021 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE NOTICE DATED 30/06/2021 ISSUED 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. Exhibit P3TRUE COPY OF THE ORDER DATED 03/06/2021 IN WRIT PETITION (L) NO. 11766 OF 2021.Exhibit P4TRUE COPY OF THE INTERIM ORDER DATED 02/09/2021 IN WPC 17655 OF 2021.Exhibit P5TRUE COPY OF INTERIM ORDER DATED 29/09/2021 IN WPC 20476 OF 2021. APPENDIX OF WP(C) 27594/2021 PETITIONER EXHIBITS