Calcutta High Court
Limited vs Union Of India And Ors on 26 April, 2023
OD - 29 & 30
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APOT/94/2023
IA No.GA/1/2023
NAVDISHA REAL ESTATE PRIVATE
LIMITED
-Versus-
UNION OF INDIA AND ORS.
APOT/95/2023
IA No.GA/1/2023
NAVDISHA REAL ESTATE PRIVATE
LIMITED
-Versus-
UNION OF INDIA AND ORS.
BEFORE :
THE HON'BLE ACTING CHIEF JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 26th April, 2023
Appearance :
Mr. Abhratosh Majumdar, Sr. Adv.
Mr. Pratyush Jhunjhunwala, Adv.
Mr. Samit Rudra, Adv.
...for the appellant
Mr. Vipul Kundalia, Adv.
Mr. Anurag Roy, Adv.
...for the respondent.
The Court : We have heard Mr. Abhratos Majumdar,
learned senior counsel assisted by Mr. Pratyush Jhunjhunwala
and Mr. Samit Rudra, learned advocates for the appellant and
Mr. Vipul Kundalia, leaned standing counsel assisted Mr. Anurag
Roy, learned Advocate for the respondent.
The appellant is aggrieved by the order of the learned
single Bench not granting interim order though the writ
petition was admitted. The writ petition questions the
correctness of the reopening proceedings pursuant to an order
passed under Section 148A(d) of the Income Tax Act, 1961 (the
'Act' in short). The learned Single Judge was of the view that
since the ground of limitation has been challenged, he was
convinced that the writ petition should be entertained. So far
as the prayer for interim order is concerned, the same has been
declined.
Learned senior advocate appearing for the appellant
had placed reliance on the decision of the High Court of
Gujarat at Ahmedabad in the case of Keenara Industries Pvt.
Ltd. vs. The Income Tax Officer, Ward 1(3)(3), Surat in
R/Special Civil Application No.17321 of 2022 etc. dated 7th
February, 2023 which had quashed the re-assessment proceedings
on the ground of limitation. It is submitted that as against
the said order passed by the High Court of Gujarat no appeal
had been preferred. The appellant also placed reliance on the
decision of the High Court of Judicature at Allahabad in WT
No.1086 of 2022 dated 22nd February, 2023 and by the said
judgment, the re-assessment proceedings were quashed.
It is submitted by the learned counsel for the
respondent that the decision of the High Court of Judicature at
Allahabad in the case of Rajeev Bansal has been stayed by the
Hon'ble Supreme Court in special Leave to Appeal (C) No.6706 of
2023 dated 13th April, 2023. The decision of the High Court of
Delhi in the case of Salil Gulati vs. Assistant Commissioner of
Income Tax, Circle 49(1) and Ors. reported in
MANU/DE/3517/2022, which was decided against the assessee, has
been affirmed by the Hon'ble Supreme Court as the Special Leave
Petition in Special Leave to Appeal (C)No.7466 of 2023 was
dismissed by the Hon'ble Supreme Court on 11th April, 2023 by a
speaking order. Thus, the legal issue with regard to
limitation needs to be considered and precisely for such reason
the writ petition has been entertained. One small yet
significant distinguishing feature in the instant case is that
apart from staying the reopening of the assessment, the
appellant had also prayed for a declaration declaring that the
provisions of Notification No.20/2021 dated 31st March, 2021
and Notification No.38/2021 dated 27th April, 2021 issued under
Section 3(1) of the Taxation and Other Laws (Relaxation and
Amendment of Certain Provisions) Act, 2020 as ultra vires and
unconstitutional. Prima facie it appears that such grounds
were not raised in the other matters which have now travelled
upto the Hon'ble Supreme Court. However, the said issue had
been considered by the High Court of Gujarat in the case of
Keenara Industries Pvt. Ltd. (supra) and the decision has been
rendered in favour of the assessee. That apart, the said
ground was canvassed in the case of Rajeev Bansal and the issue
was decided in favour of the assessee and at the instance of
the revenue, the Hon'ble Supreme Court has stayed the said
judgment.
Thus, considering the present position of law, we are
of the view that if the re-assessment proceeding is allowed to
proceed further, the writ petition will become infructuous.
Therefore, there will be a stay of all further proceedings
pursuant to the order dated 22nd July, 2022 passed under
Section 148A(d) of the Act till the writ petition is heard and
disposed of. However, the period of stay shall not be taken
advantage of by the assessee for the purpose of computation of
limitation.
The respondent/revenue is directed to file their
affidavit-in-opposition in the writ petition within three weeks
from date; reply thereto, if any, be filed within three weeks
thereafter. List the writ petition before the appropriate
learned Single Bench in the monthly list of July, 2023.
The appeals and the connected applications accordingly
stand disposed of.
(T.S. SIVAGNANAM)
ACTING CHIEF JUSTICE
(HIRANMAY BHATTACHARYYA, J.)
As
