Vishakha Accounting Services ... vs Assistant Commissioner Of Income ...
2022 Latest Caselaw 4164 Bom

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         MEERA                                        1/3                          919-wp-1204-22.doc
MEERA    MAHESH
MAHESH   JADHAV
JADHAV   Date:
         2022.04.22
         11:08:05
         +0530
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                      WRIT PETITION NO. 1204 OF 2022

               Vishakha Accounting Services Pvt Ltd.                ....Petitioner
                      V/s.
               Assistant Commissioner of Income Tax
               Circle 8(3)(1) Mumbai & Ors.                         ...Respondents

                                                 ----

Mr. Prathamesh Kamat a/w Mr. Harsh L Behany, Ms Neena Shah, Mr. Gaurav Gandhi a/w Ms Saloni Manjrekar i/b Mr. Harsh Behany for Petitioner Mr. Suresh Kumar for Respondents

----

CORAM : K.R. SHRIRAM & N.R. BORKAR, JJ DATED : 20th APRIL 2022

P.C. :

1 This petition has been served on respondents on 3 rd March 2022 but

no reply has been filed till date. On 29 th March 2022, respondents were

directed to file an affidavit regarding the time of uploading the notice,

which affidavit also has not been filed.

2 Petitioner is impugning a notice dated 31 st March 2021 issued under

Section 148 of the Income Tax Act 1961 (the said Act) for A.Y.-2015-2016

on various grounds. One such ground is that the sanction issued under

Section 151 of the Act is not a valid sanction. Indisputably, the notice

impugned has been issued more than four years after expiry of the relevant

assessment year. It is petitioner's case that the approval obtained for issuing

the said notice is from Additional Commissioner of Income Tax instead of

Principal Commissioner of Income Tax and hence is not accordance with

Meera Jadhav 2/3 919-wp-1204-22.doc

mandates of Section 151 of the Act. Though, approval has not been placed

on record, in paragraph 8 of the reasons recorded for re-opening it is

mentioned "............ Hence necessary sanction to issue the notice under

Section 148 has been obtained separately from the Additional

Commissioner of Income Tax as per the provisions of Section 151 of the

Act." According to respondents the case at hand is within four years from

the end of the assessment year under consideration, in view of extension of

limitation date due to Covid situation. The Assessing Officer has not

explained in the reasons recorded as to how the limitation date has got

extended. Mr. Suresh Kumar states that he is relying on Taxation and other

Laws (Relaxation of Certain Provisions) Act, 2020, by which limitation,

inter alia, under provisions of Section 151(1) and Section 151(2), which

were originally expiring on 31st March 2020 stood extended to 31st March

2021 and in view thereof, for the Assessment Year 2015-2016 which falls

under the category within four years as on 31 st March 2020, the statutory

approval for issuance of notice under Section 148 of the Act was given by

the Additional Commissioner.

3 Even if for a moment, we agree with Mr. Suresh Kumar, still it applies

to only cases where the limitation was expiring on 31 st March 2020. In the

case at hand, the assessment year is 2015-2016 and, therefore, the six years

limitation will expire only on 31st March 2022. Therefore, the Relaxation Act

provisions cannot be applicable. Even if, the time to issue notice is

considered to have been extended, that would not amount to amending the

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provisions of Section 151 of the Act.

4 In our view, for the case at hand, the approval ought to have been

given by the Principal Chief Commissioner or Chief Commissioner or

Principal Commissioner or Commissioner and not by the Additional

Commissioner of Income Tax. We find support for this view in judgment of

this court in Voltas Ltd. Vs. ACIT & Ors.1 and J.M.Financial and Investment

Consultancy Services Pvt. Ltd. Vs. ACIT Circle 3(2)(1) & Ors.2 Therefore, on

this ground alone the impugned notice dated 31st March 2021 issued under

Section 148 of the Act is quashed and set aside. Therefore, consequential

orders and notices will also have to go including the assessment order dated

28th March 2022.

5         Petition disposed with no order as to costs.




(N. R. BORKAR, J.)                                               (K.R. SHRIRAM, J.)




1. 2022 SCC Online Bom 741

2. Order dated 4th April 2022 in Writ Petition No.1050 of 2022

Meera Jadhav