AKSHAY JAIN,DELHI vs. ACIT CIRCLE-2(1)(2) INT. TAXATION, DELHI

ITA No.5966/DEL/2024

IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH “D” NEW DELHI

BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER
AND SHRI AVDHESH KUMAR MISHRA, ACCOUNTANT MEMBER
िनधारणवष/Assessment Year: 2015-16

Akshay Jain,
B4/52, 1st Floor, Paschim Vihar,
New Delhi.
बनाम
Vs.
ACIT,
Circle-2(1)(2),
International Taxation,
Delhi.
PAN No.AGDPJ9695F
अपीलाथ Appellant
यथ/Respondent

Assessee by Shri Basant Kumar, Adv. &
Shri Sashi Sekhar Rai, CA
Revenue by Ms. Anjula Jain, CIT DR

सुनवाईकतारीख/ Date of hearing:
20.05.2025
उोषणाकतारीख/Pronouncement on 23.05.2025

आदेश /O R D E R

PER C.N. PRASAD, J.M.

This appeal is filed by the assessee against the final assessment order passed by the Assessing Officer u/s 144 read with 147 read with 144C(13) of the Act pursuant to the directions of the DRP dated 25.09.2024 in assessing the income of the assessee at Rs.5,92,920/-.
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Act. We observe that in the case of MAKE MY TRIP INDIA PRIVATE
LIMITED VS. DCIT (supra) the Hon’ble Delhi High Court had considered a similar situation and following the decision of the Hon’ble Supreme Court in the case of Union of India Vs. Rajiv Bansal the Hon’ble Delhi High Court held that notice issued beyond
31.03.2022 for the AY 2015-16 is liable to be set aside. The Hon’ble
High Court while holding so observed as under: -
“HON'BLE MR. JUSTICE VIBHU BAKHRU AND HON'BLE MR.
JUSTICE TEJAS KARIA
For the Petitioner Through: Mr Salil Kapoor, Mr Sumit
Lalchandani, Ms Ananya Kapoor, Mr Tarun Chanana, and Mr
Shivam Yadav, Advocates.
For the Respondents Through: Mr Abhishek Maratha, SSC, Mr
Apoorv Agarwal, Mr Parth Samwal, JSCs, Ms Nupur Sharma,
Mr Gaurav Singh, Ms Muskaan Goel, Mr Bhanukaran Singh
Jodha, Advocates
VIBHU BAKHRU. J. (ORAL)
1. The petitioner has filed the present petition, inter alia, praying as under: -
“A. Issue a writ of and/or order and or directions in the nature of certiorari or any other appropriate writ, order or direction quashing the notice dated 19.05.2022 issued under Section 148A (b) of the Act; impugned notice dated
27.07.2022 issued under Section 148 of the Act and the impugned order dated 27.07.2022 passed under Section 148A (d) of the Act by the Respondent No. 1 and the proceedings initiated pursuant thereto;
B. Issue a writ of and/or order and/or direction in the nature of Prohibition commanding
Respondents to forebear from giving effect to and/or taking any step whatsoever pursuant to and/or in furtherance of the said purported notice under Section 148 of the Act and/or in 4

any proceedings initiated thereunder for the AY 2015-16, and grant stay on the reassessment proceedings.”
2. The petitioner impugns a notice dated 27.07.2022
[the impugned notice] issued under Section 148 of the Income Tax Act, 1961 [the Act] in respect of the Assessment
Year [AY] 2015-2016 and contends that the same is barred by limitation.
The petitioner had filed its return of income for AY 2015-
2016 on 28.11.2015. Thereafter, on 25.10.2017, the petitioner entered into an Advance Pricing Agreement [APA],
Consequently, its return of income was required to be modified for the said year. The return as modified was selected for scrutiny. The said proceedings culminated in an assessment order dated 29.12.2018 passed under Section 143
(3) of the Act whereby the petitioner's income was assessed at Rs.1,90,02,11,840/-.
4. Aggrieved by the same, the petitioner filed an appeal before the Commissioner of Income Tax (Appeals) [CIT(A)].
The said appeal was allowed by an order dated 24.06.2019
and the additions made by the Assessing Officer [AO] were set aside.
5. Thereafter on 21.04.2021, the AO issued a notice under Section 148 of the Act seeking to reopen the assessment for the AY 2015-16. The said notice was issued under the provisions relating to reassessment of income
(Sections 147 to 151) of the Act as were in force on 31.03,2021 and prior thereto. The petitioner filed its return of income in response to the said notice and also sought reasons for re-opening of the assessment.
6. In the meanwhile, several petitions were filed assailing such notices that were issued under Section 148 of the Act after 31.03.2021 but following the statutory regime for reassessment as was in enforce prior to the said date.
Some of these petitions were allowed on 15.12.2021 by a decision in Mon Mohan Kohli v. ACIT & Anr.: Neutral Citation
No.: 2021:DHC:4181-DB and other connected matters. Similar decisions were rendered by some other High Courts.
7. These decisions were appealed by the Revenue before the Supreme Court. In Union of India & Others v.
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Ashish Agarwal: (2023) 1 SCC 617, the Supreme Court, issued certain directions in exercise of powers its under Article 142
of the Constitution of India including the direction to treat such notices issued under Section 148 of the Act as notices under Section 148A (b) of the Act. The AO was also directed to furnish such material and information to the assessees as were required to accompany a notice under Section 148A (b) of the Act.
8. In a subsequent decision in Union of India and Others v. Rajeev BansaI: 2024 IN SC 754, the Supreme Court considered the manner of applicability of the- provisions of Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [TOLA], During the said proceedings it was con ceded on behalf of the Revenue that TOLA was not applicable for reopening the assessments for AY 2015-16. The said concession was recorded in paragraph
19 (f) of the said decision. Paragraphs 19 (e) and 19 (f) of the said decision are relevant and are set out below: -
“(e) The Finance Act 2021 substituted the old regime for re-assessment with a new regime. The first proviso to Section 149 does not expressly bar the application of TOLA. Section 3 of the TOLA applies to the entire income Tax Act, including Sections 149 and 151 of the new regime. Once the first proviso to Section 149 (1) (b) is read with TOLA, then all the notices issued between 1
April 2021 and 30 June 2021 pertaining to the assessment years 2013-2014. 2014-2015, 2015-2016. 2016-2017, and 2017-2018 will be within the period of limitation as explained in the tabulation below:

Assessment
Year (1)
Within 3 Years
(2)
Expiry
Limitation read with TOLA for (2) (3)
Within six years (4)
Expiry of Limitation read with TOLA for (4) (5)
2013-2014
31.03.2017
TOLA not applicable
31.03.2020
30.06.2021
2014-2015
31.03.2018
TOLA not applicable
31.03.2021
30.06.2021
2015-2016
31.03.2019
TOLA not applicable
31.03.2022
TOLA not applicable
2016-2017
31.03.2020
30.06.2021
31.03.2023
TOLA not applicable
2017-2018
31.03.2021
30.06.2021
31.03.2024
TOLA not applicable
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(f) The Revenue concedes that for the assessment year
2015-2016, all notices issued on or after 1 April 2021 will have to be dropped as they will not fall for completion during the period prescribed under the TOLA."
9. Following the aforesaid concession, this court in Ibibo
Group Private Limited v Assistant Commissioner of Income
Tax Circle 10-1, & Anr.: W.P.(C) 17639/2022 decided on 13.12.2024 allowed the petition challenging a similar notice for AY 2015-16 which was issued beyond the period of limitation as concededly TOLA was not applicable. Similar orders have also been passed by other courts as well.
10. In the Income Tax Officer Ward 1(2) Jaipur v R.K.
Build Creations Pvt Ltd: Special Leave Petition (Civil) Diary
No. 59625/2024 the Supreme Court dismissed the SLR arising from a similar decision rendered by the Hon’ble Rajasthan
High Court in DB CWP No. 14414/2022. The said order is set out below: -
“Delay condoned.
Having regard to the concession made by the petitioner-
Pending application(s), if any, shall stand disposed of."
11. In the present case the impugned notice was issued on 27.07.2022, which was admittedly beyond the period of limitation as prescribed under Section 149 (1) of the Act.
Since TOLA was not applicable in respect of the said notices under Section 148 of the Act for AY 2015-16 as conceded by the Revenue in the case of Union of India v. Rajeev Bansal:
2024 INSC 754 (supra), the impugned notice is liable to be set aside
12. Accordingly, the impugned notice and proceedings emanating from the said notice are set aside.
13. The petition is allowed in the aforesaid terms.”
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