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1 IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.17293 OF 2021 (T-IT)
BETWEEN:
ANI TECHNOLOGIES PRIVATE LIMITED REGD ADDRESS : 414, 3RD FLOOR, REGENT INSIGNIA 4TH BLOCK, 17TH MAIN, 100 FEET ROAD KORAMANGALA, BENGALURU – 560 034. REPRESENTED BY ITS AUTHORISED SIGNATORY MR. KEDAR V KULKARNI VICE PRESIDENT & GROUP HEAD – TAXATION. …PETITIONER (BY SRI.K.R. PRADEEP, ADVOCATE)
AND:
1 . CENTRAL BOARD OF DIRECT TAXES REP. BY IT SECRETARY REVENUE
DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, UNION OF INDIA,
NORTH BLOCK, NEW DELHI 110 002.
2 . THE PRINCIPAL COMMISSIONER OF INCOME TAX – RANGE -1, AAYAKAR BHAWAN, RISHI NAGAR
LUDHIANA, PUNJAB – 141 001.
3 . THE ASSISTANT COMMISSIONER
OF INCOME TAX, CIRCLE – 1, LUDHIANA
AAYAKAR BHAWAN, RISHI NAGAR
LUDHIANA, PUNJAB – 141 001.
4 . THE PRINCIPAL CHIEF COMMISSIONER OF
INCOME TAX, NORTH WEST REGION
AAYAKAR BHAWAN, SECTOR -17E
CHANDIGARH – 160 017.
…RESPONDENTS (BY SRI. K.V.ARAVIND, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE DTD: 21.04.2021 ISSUED BY THE R-3 UNDER
2 SECTION 148 OF THE ACT (ANNEXURE-A) FOR THE ASSESSMENT YEAR 2016-17 AND ETC.
THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In this petition, the petitioner has sought for the following reliefs: a) Quash the impugned notice dated 21.04.2021 bearing No. ITBA / AST / S / 148 / 2021-22 / 1032569414(1) issued by the respondent No.3 under Section 148 of the Act for the assessment year 2016-17 (Annexure-A);
b) Declaring that in the event it is being held that the impugned Notifications dated 31.03.2021 and 27.04.2021 bearing No.20/2021 and No.38/2021 respectively (Annexures B and B1) issued by the respondent No.3 enable the respondents and the Revenue authorities to dispense with the requirement to comply with the conditions precedent that are set out in Section 148A of the Income Tax Act, 1961 before issuing any notice under Section 148 of the Income Tax Act, 1961 the said Notifications are ultra vires the provisions of the Income Tax Act, 1961 and the provisions of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 and thus bad in law;
c) Declare that the impugned proceedings initiated by the respondent No.3 under the Income Tax Act, 1961 is illegal and without authority of law; and
3 d) Pass such other or further orders as this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity.
Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
The material on record clearly indicates that the impugned Notice dated 21.04.2021 under Section 148 of the Income Tax Act, 1961 (for short, ‘the IT Act’) has been issued by the respondents after 01.04.2021 subsequent to the amendment to Sections 147 to 151 of the IT Act. The legality, validity and correctness of such notices issued under Section 148 of the IT Act by the respondent-revenue after 01.04.2021 by invoking pre- amendment provisions came up for consideration before the Apex Court in the Union of India Vs. Ashish Agarwal – (2022) 138 Taxmann.com 64 (SC), wherein the following directions were issued by the Apex Court:
“10. In view of the above and for the reasons stated above, the present Appeals are ALLOWED IN PART. The impugned common judgments and orders passed by the High Court of Judicature at Allahabad in
4 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 assessees 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 assessees information and material relied upon by the Revenue, so that the assesees 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
5 each of the concerned assessees; Thereafter after following the procedure as required under section 148A may issue notice under section 148 (as substituted); (iv) All defences which may be available to the assesses 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.
The present order shall be applicable PAN INDIA and all judgments 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 (Sic) 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 judgments 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.
The impugned common judgments and orders passed by the High Court of Allahabad and the similar judgments and orders passed by various High Courts, more particularly, the respective judgments and orders passed by the various High Courts particulars of which are
6 mentioned hereinabove, shall stand modified/substituted to the aforesaid extent only.
All these appeals are accordingly partly allowed to the aforesaid extent.
In the facts of the case, there shall be no order as to costs.”
Subsequent to the aforesaid directions issued by the Apex Court, the respondents have issued one more Notice dated 19.05.2022 during the pendency of the present petition.
Under these circumstances, in the light of the undisputed fact that the impugned notice dated 21.04.2021 has been issued after 01.04.2021, in the light of the directions issued by the Apex Court in the Ashish Agarwal’s case supra, I deem it just and appropriate to dispose of this petition reserving liberty in favour of the petitioner to file objections / additional objections along with documents / additional documents to the aforesaid impugned notice as well as the subsequent Notice dated 19.05.2022 issued by the respondents.
7 6. Pursuant to the petitioner filing objections / additional objections along with documents / additional documents as stated supra, the respondents are directed to proceed further and pass appropriate orders under Section 148A (d) of the IT Act, in accordance with law after providing an opportunity of personal hearing in favour of the petitioner. It is needless to state that petitioner would be entitled to all defences available both under the unamended provisions as well as the amended provisions. All rival contentions are kept open and no opinion is expressed on the merits / demerits of the same. Subject to the aforesaid directions, petition stands disposed of.
Sd/- JUDGE