Calcutta High Court (Appellete Side)
Sudha Agarwal vs Income Tax Officer on 5 May, 2022
05-05-2022
Item No.3-12
IN THE HIGH COURT AT CALCUTTA
Subrata Constitutional Writ Jurisdiction
Appellate Side
WPA No.5778 of 2022
Sudha Agarwal
-vs-
Income Tax Officer, Ward No.1(1), Kolkata & Ors.
with
WPA No.6025 of 2022
with
WPA No.6585 of 2022
with
WPA No.6651 of 2022
with
WPA No.6662 of 2022
with
WPA No.7000 of 2022
with
WPA No.7112 of 2022
with
WPA No.7233 of 2022
with
WPA No.7235 of 2022
and
WPA No.7237 of 2022
Mr. Avra Mazumder
Sk. Md. Bilwal Hossain
Mr. Binayak Gupta
Mr. K. Roy
Mr. Rites Goel
Ms. Amami Kayan
Mr. Zubeen Pandey
Mr. Vevek Murarka
Mr. D.N. Dey ...for the petitioners
(in all WPAs)
Mr. Om Narayan Rai
Mr. Prithu Dudhoria
Mr. Somen Bhattacharjee ...for the respondents
(in all WPAs)
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 judgement 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 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
assessees 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 assessees; 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
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
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.
12. 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 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
guidance as per aforesaid order of the Hon'ble Supreme
Court.
The Registrar General of this court shall 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]
