Kailash Khandelwal vs Union Of India And Ors
2022 Latest Caselaw 1565 Cal/2

                                         1



                    IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                               Original Side



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

                              W.P.O. No. 1802 of 2022

                              KAILASH KHANDELWAL
                                       Vs.
                             UNION OF INDIA AND ORS.

                                            With

W.P.O. No. 2016 of 2022,

      For the Petitioners              :-

Mr. Brijesh Kumar Singh, Mr. Hemant Tiwari, Advocates

      For the Respondents              :-

Mr. Aryak Dutt, Mr. Smarajit Roy Chowdhury, Advocates



      Dated : 11th May, 2022

   MD. NIZAMUDDIN, J.

In compliance of my earlier orders, petitioners 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 guidelines and law laid down as per aforesaid

order of the Hon'ble Supreme Court.

(Md. Nizamuddin, J.)

TR/