GAJAPATI DISTRIBUTORS PVT LTD vs. UNION OF INDIA AND ORS

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side

Present :- Hon’ble Mr. Justice Md. Nizamuddin

W.P.O. No. 1788 of 2022

BRUBECK RESOURCES PRIVATE LIMITED VS UNION OF INDIA AND ORS

With

W.P.O. No. 1789 of 2022, W.P.O. No. 1956 of 2022, W.P.O. 1957 of 2022, W.P.O. No. 1958 of 2022, W.P.O. No. 1959 of 2022, W.P.O. No. 1960 of 2022, W.P.O. No. 1961 of 2022, W.P.O. No. 1962 of 2022, W.P.O. No. 1963 of 2022, W.P.O. No. 1964 of 2022, W.P.O. No. 1965 of 2022, W.P.O. No. 1966 of 2022, W.P.O. No. 1967 of 2022, W.P.O. No. 1968 of 2022, W.P.O. No. 1970 of 2022, W.P.O. No. 1971 of 2022, W.P.O. No. 1972 of 2022, W.P.O. No. 1973 of 2022, W.P.O. No. 1974 of 2022, W.P.O. No. 1977 of 2022, W.P.O. No. 1978 of 2022, W.P.O. No. 1979 of 2022, W.P.O. No. 1980 of 2022, W.P.O. No. 1981 of 2022, W.P.O. No. 1985 of 2022, W.P.O. No. 1991 of 2022, W.P.O. No. 1992 of 2022, W.P.O. No. 1993 of 2022, W.P.O. 1994 of 2022, W.P.O. No. 1995 of 2022, W.P.O. No. 1996 of 2022, W.P.O. No. 1997 of 2022, W.P.O. No. 1998 of 2022, W.P.O. No. 2000 of 2022, W.P.O. No. 2012 of 2022, W.P.O. No. 2013 of 2022, W.P.O. No. 2014 of 2022, W.P.O. No. 2015 of 2022, W.P.O. No. 2017 of 2022, W.P.O. No. 2018 of 2022, W.P.O. No. 2019 of 2022, W.P.O. No. 2020 of 2022, W.P.O. No. 2022 of 2022, W.P.O. No. 2023 of 2022.

For the Petitioners :- Ms. Swapna Das, Mr. Siddharth Das, Mr. Hemant Tiwari, Mr. Gopal Ram Sharma, Mr. Brujesh Kumar Singh, Advocates

For the Respondents :-

Mr. Prithu Dudhoria, Mr. Tilak Mitra, Mr. Saurav Chanda, Mr. S. Das, Mr. Aditya Mondal, Mr. Vipul Kundalia, Mr. Om Narayan Rai, Mr. Soumen Bhattacharjee, Advocates

Dated : 05th May, 2022

MD. NIZAMUDDIN, J. In compliance of my earlier orders, petitioner in these writ petitions have paid the costs and filed receipts, which are taken on record. Taking note of a judgment of the Hon’ble Supreme Court dated May 4, 2022 in the case of Union of India & Ors. V. Ashish Agarwal in Civil Appeal No. 3005 of 2022, it is clarified that by the earlier orders of this Court, the impugned notices under Section 148 of the Income Tax Act, 1961 and all proceedings under Section 147 of the old Act, which were quashed with liberty to the assessing officer concerned to proceed in accordance with law, would now mean as per the law and guidelines laid down in the aforesaid judgement of the Hon’ble Supreme Court.

Paragraphs 10, 11 and 12 of the aforesaid judgement of the Hon’ble Supreme Court, which, according to me, have much relevance, are quoted below:-

“10. In view of the above and for the reasons stated above, the present Appeals are ALLOWED IN PART. The impugned common judgements and orders passed by the High Court of judicature at Allahabad in W.T. No. 524/2021 and other allied tax appeals/petitions, is/are hereby modified and substituted as under:- (i) The impugned section 148 notices issued to the respective assesses which were issued under unamended section 148 of the IT Act, which were the subject matter of writ petitions before the various respective High Courts shall be deemed to have been issued under section 148A of the IT Act as substituted by the Finance Act, 2021 and construed or treated to be show-cause notices in terms of section 148A(b). The assessing officer shall, within thirty days from today provide to the respective assesses information and material relied upon by the Revenue, so that the assesses can reply to the show- cause notices within two weeks thereafter; (ii) The requirement of conducting any enquiry, if required, with the prior approval of specified authority under Section 148A(a) is hereby dispensed with as a one-time measure vis-à-vis those notices which have been issued under Section 148 of the

unamended Act from 01.04.2021 till date, including those which have been quashed by the High Courts. Even otherwise as observed hereinabove holding any enquiry with the prior approval of specified authority is not mandatory but it is for the concerned Assessing Officers to hold any enquiry, if required; (iii) The assessing officers shall thereafter pass orders in terms of Section 148A(d) in respect of each of the concerned asessees; Thereafter after following the procedure as required under Section 148A may issue under Section 148 (as substituted); (iv) All defences which may be available to the assessees including those available under Section 149 of the IT Act and all rights and contentions which may be available to the concerned assessees and Revenue under the Finance Act, 2021 and in law shall continue to be available. 11. The present order shall be applicable PAN INDIA and all judgements and orders passed by different High Courts on the issue and under which similar notices which were issued after 01.04.2021 issued under Section 148 of the Act are set aside and shall be governed by the present order and shall stand modified to the aforesaid

extent. The present order is passed in exercise of powers under Article 142 of the Constitution of India so as to avoid any further appeals by the Revenue on the very issue by challenging similar judgements and orders, with a view not to burden this Court with approximately 9000 appeals. We also observe that present order shall also govern the pending writ petitions, pending before various High Courts in which similar notices under Section 148 of the Act issued after 01.04.2021 are under challenge. 12. The impugned common judgements and orders passed by the High Court of Allahabad and the similar judgements and orders passed by various High Courts, more particularly, the respective judgements and orders passed by the various High Courts particulars of which are mentioned hereinabove, shall stand modified/substituted to the aforesaid extent only.” Accordingly, the respondent-assessing authorities concerned will now proceed with those quashed notices and proceedings in accordance with the law laid down and guidelines as per aforesaid order of the Hon’ble Supreme Court.

The Registrar Original Side of this Court shall immediately forward a copy of this order to the Principal Chief Commissioner of Income Tax, West Bengal and Sikkim who will circulate the same to all the concerned subordinate authorities.

(Md. Nizamuddin, J.)

Sbghosh