Wpa v. Income Tax Officer, Ward

07-04-2022Item No.29Subrata IN THE HIGH COURT AT CALCUTTAConstitutional Writ JurisdictionAppellate Side WPA No.5892 of 2022Finestar Consultancy Private Limited -vs- Income Tax Officer, Ward No.7(1), Kolkata & Ors. Mr. Avra Mazumder Sk. Md. Bilwal Hossain Mr. Kaushey Roy …for the petitioner Learned advocate for the petitioner is present andfiles affidavit of service. None appears on behalf of the respondents even atthe second call. Mr Amit Sharma, learned advocate whogenerally appears for the department, is present in court,who will appear in this matter for the respondents and hisappearance may be regularised. Learned advocate for the petitioner shall serve acopy of the writ petition upon Mr Sharma. Heard learned counsels appearing for the respectiveparties. Petitioner is aggrieved by the issuance of impugnednotice under section 148 of the Income Tax Act, 1961 onthe grounds that the same is barred by limitation and thatthe respondent-income tax authority concerned, beforeissuing the impugned notices under section 148 of theIncome Tax Act, 1961 have not observed the statutoryformalities under section 148A of the 1961 Act asprescribed by the Finance Act, 2021 which are applicablewith effect from 1[st] April 2021 before issuance of noticesunder section 148 of the 1961 Act on or after 1[st] April2021. Issues arising in the present writ petition is purelylegal, and in this writ petition the assessee/petitioner hassought relief of quashing of the impugned re-assessmentnotice issued post-31[st] March 2021 by the respondent-income tax authority concerned under section 148 of theAct, assessee/petitioner has also sought relief by way of adeclaration declaring Explanations A(a)(ii)/A(b) to theNotification No.20 [S.O. 1432(E)] dated 31[st] March 2021and Notification No.38 [S.O.1703(E)] dated 27[th] April 2021to the extent that the same extend the applicability of the“provisions of section 148, section 149 and section 151 ofthe Act, as the case may be, as they stood as on the 31[st]March 2021, before the commencement of the Finance Act,2021” to the period beyond 31[st] March 2021 as ultra viresthe parent legislation, viz., the Taxation and Other Laws(Relaxation and Amendment of Certain Provisions) Act,2020 (hereinafter referred to as the ‘Relaxation Act, 2020’). At the outset, all the counsel appearing for theparties jointly submitted that the issues involved in thiswrit petition is covered by a decision of the Division Benchof the Allahabad High Court dated September 30, 2021 inthe case of Ashok Kumar Agarwal v. Union of India throughits Revenue Secretary North Block & Ors. (Writ TaxNo.524/2021) decided in favour of the assessee/petitionerand an order of Rajasthan High Court dated November 25,2021 in the case of Bpip Infra Private Limited v. Income TaxOfficer, Ward 4(1), Jaipur (S.B. Civil Writ Petition No.13297/2021) and also an order of Delhi High Court datedDecember 15, 2021 in the case of Man Mohan Kohli v.Assistant Commissioner of Income Tax & Anr. [W.P.(C) 6176of 2021] and the judgement and order of this court datedJanuary 17, 2022 in the case of Manoj Jain v. Union ofIndia & Ors. (WPA No.11950 of 2021) and in the case ofBagaria Properties and Investment Private Limited & Anr.(WPO No.244 of 2021). In view of the judgement and order of this courtdated January 17, 2022 in the case of Manoj Jain v. Unionof India & Ors. in WPA No.11950 of 2021 and in the case ofBagaria Properties and Investment Private Limited & Anr.(WPO No.244 of 2021), this writ petition being WPANo.5892 of 2022 is disposed of by allowing the same.Explanations A(a)(ii)/A(b) to the Notifications dated 31[st]March 2021 and 27[th] April 2021 are declared to be ultravires the Relaxation Act, 2020 and are, therefore, bad inlaw and null and void. In view of the judgement and order of this courtdated January 17, 2022 in the case of Manoj Jain v. Unionof India & Ors. in WPA No.11950 of 2021 and in the case ofBagaria Properties and Investment Private Limited & Anr.(WPO No.244 of 2021), this writ petition being WPANo.5892 of 2022 is disposed of by allowing the same.Explanations A(a)(ii)/A(b) to the Notifications dated 31[st]March 2021 and 27[th] April 2021 are declared to be ultravires the Relaxation Act, 2020 and are, therefore, bad inlaw and null and void. Accordingly, the impugned notice under section148 of the Income Tax Act, 1961 is quashed with liberty tothe assessing officers concerned to initiate fresh re-assessment proceedings in accordance with the relevantprovisions of the Act as amended by the Finance Act, 2021and after making compliance of the formalities as requiredby the law. This writ petition is allowed subject to payment ofcosts of Rs.5,000/- to the High Court Legal ServicesCommittee, since the impugned notice under section 148of the Income Tax Act, 1961 has been issued on April 8,2021 as appears from record and this writ petition hasbeen filed in March 2022, that is, almost after ten monthsfrom receipt of the impugned notice, without anyexplanation for such delay in filing this writ petition. Suchcosts has to be paid by the petitioner to the High CourtLegal Services Committee within seven days from datewhich is to be utilised by it for the welfare of streetchildren. Receipt of payment is to be produced before thiscourt. List this writ petition under the heading “To BeMentioned” on April 21, 2022 for compliance. [Md. Nizamuddin, J]