[Cites 17, Cited by 0]
Gujarat High Court
Prakash Misrimal Sanghvi vs Deputy Commissioner Of Income Tax ... on 2 February, 2026
Author: A.S. Supehia
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9868 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✔
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PRAKASH MISRIMAL SANGHVI
Versus
DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(1) ,
AHMEDABAD
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Appearance:
MR B S SOPARKAR(6851) for the Petitioner(s) No. 1
MR.VARUN K.PATEL(3802) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 02/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. RULE. Learned Senior Standing Counsel Mr. Varun
Patel waives service of notice of rule on behalf of the
respondent - Department. Since a pure question of law is
raised in the writ petition, the same was heard extensively
and is finally decided today by this present judgment and
order.
2. The brief facts giving rise to the filing of the writ petition
are as under:
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2.1 The petitioner is an individual and citizen of India and he
is, therefore, entitled to the constitutional rights guaranteed
under Articles 14 and 19(1)(g) of the Constitution of India.
The Respondent is a 'State' within the meaning of Article 12 of
the Constitution of India.
2.2 A search and seizure operation u/s 132 of the Act was
initiated on Ratnamani Group on 23.11.2021.
2.3 Subsequently, on 29.03.2023, the petitioner is issued the
impugned notice for reopening u/s 148 for the AY 2012-13
inter alia other notices u/s 148 for other Assessment Years.
The petitioner filed his preliminary objections against the
issuance of notice u/s 148 dated 07.04.2023.
2.4 Shockingly disregarding the objections of the petitioner,
the respondent has passed an order disposing off objections
on 26.04.2023.
2.5 The respondent has, thereafter, issued notice u/s 142(1)
on 08.04.2023. The petitioner replied to the same vide reply
dated 17.04.2023 and 06.05.2023. The respondent has
thereafter issued a show-cause notice on 28.04.2023 and the
petitioner has replied to the same on 09.05.2023.
2.5A The respondent has, thereafter, passed the assessment
order on 02.06.2023 at Rs. 58,08,04,430/- and raised the
demand of Rs.37,70,35,033/-. The respondent has also issued
notice for penalty u/s 274 read with section 271(1)(c) on
09.06.2023. It is crucial to note that the respondent has not
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provided any opportunity of personal hearing nor issued any
draft assessment order.
3. Learned advocate Mr. B.S.Soparkar appearing for the
petitioner, at the outset, has submitted that the impugned
notice is barred by limitation and runs contrary to the
provisions of Section 149 read with Section 153A(1)(b) read
with Explanation 1 to Section 153A of the Act. Mr. Soparkar,
learned advocate, has advanced the following submissions :
3.1 Relying upon Section 149 of the Act, it is contended that
the notice under Section 148 of the Act can be issued up to six
years from the end of the relevant assessment year. Further,
relying upon Sections 153A and 153C of the Act, he would
submit that notices under Sections 153A / 153C of the Act can
be issued for a period of "ten assessment years" immediately
preceding the assessment year relevant to the previous year
in which search is carried out and for the "relevant
assessment years", subject to fulfillment of certain conditions.
3.2 It is submitted that the "relevant assessment year"
means an assessment year preceding the assessment year
relevant to the previous year in which search is carried out or
requisition is made, which falls beyond six assessment years
but not later than ten assessment years from the "end of the
assessment year relevant to the previous year in which search
is conducted".
3.3 Reference is also made to the provisions of Section 149
of the Act, more particularly the proviso to Section 149 read
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with Explanation-1 to Section 153A of the Act, and it is
submitted that so far as the limitation is concerned, for
reopening of the assessment, the same is pari materia to
Section 153C of the Act.
4. It is submitted that in the instant case, the search action
was carried out on 23.11.2021, i.e. during the Financial Year
2021-22, and hence the relevant assessment year to the
previous year in which the search was undertaken under
Section 132 of the Act is Assessment Year 2022-23. It is
further submitted that the notice under Section 148 of the Act
for the Assessment Year 2012-13 would be time-barred, as the
period of ten years would end at Assessment Year 2013-14,
since the Assessment Year 2022-23 will become the first
assessment year as per the provisions of Sections 153A - 153C
of the Act.
4.1 In support of his submissions, learned advocate Mr.
Soparkar has placed reliance on the judgment of the Delhi
High Court in the case of Dinesh Jindal vs. Assistant
Commissioner of Income Tax, Central Circle 20, Delhi & Ors.,
being Writ Petition (Civil) No. 12091 of 2023 decided on
27.05.2024. Reliance is also placed on the judgment of the
Delhi High Court in the case of Principal Commissioner of
Income-tax (Central-1) vs. Ojjus Medicare (P) Ltd., [2024] 161
taxmann.com 160 (Delhi). Finally, he has also placed reliance
on the judgment of the Madras High Court, Bench at Madurai,
dated 24.03.2021 passed in Writ Petition (MD) No. 4327 of
2021.
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4.2 Thus, it is urged that the impugned notice may be set
aside.
5. The writ petition is vehemently opposed by the learned
Senior Standing Counsels appearing for the respondent -
Department, by contending that if the issue raised in the
present petition is answered in favour of the assessee, it will
have wide ramifications. We have heard them at length. The
following submissions are made by the learned Senior
Standing Counsels appearing on behalf of the revenue:
5.1 It is submitted that the proviso to Section 149 of the Act,
which was introduced by the Finance Act, 2021, will apply
only to those categories of cases in which the Assessing
Officer, at the relevant time, was unable to issue any show-
cause notice and had not taken action beyond the time limit
specified under the provisions of clause (b) of sub-section (1)
of Section 153A or Section 153C of the Act, which is not the
scenario in the instant petition. It is submitted that in the
present case, the search was carried out on 23.11.2021 and
hence the case of the petitioner would fall under the
provisions of Section 153A of the Act.
5.2 In the context of the foregoing submission, reference is
made to the provisions of Section 152 of the Act, more
particularly sub-section (3), which empowers the Assessing
Officer to reopen the proceedings pursuant to the search
under Section 132 or requisition made under Section 132A or
a survey conducted under Section 133A of the Act, if such
action is taken on or after the first day of April 2021 but
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before the first day of September 2024. It is submitted that in
the present case, admittedly, the search was conducted on
23.11.2021, which falls between these dates, and hence the
provisions of Section 149(b) of the Act get attracted. In this
regard, reliance is also placed on the Division Bench judgment
of this Court in the case of Bhavin Kishorebhai Zinzuwadia vs.
Assistant Commissioner of Income-tax, Central Circle-2(3),
[2024] 169 taxmann.com 505 (Gujarat).
5.3 It is submitted that as per clause (b) to sub-section (1) of
Section 149 of the Act, the period of ten years, in a case
where the escaped income is more than Rs. 50 lakhs, would
begin after ten years have lapsed from the end of the relevant
assessment year. It is contended that in the instant case, it
was noticed from the incriminating material that the income
had escaped assessment for the year 2012-13, and if the ten
years are counted after excluding the Assessment Year 2022-
23, the action of the revenue would fall within the limitation
period of such ten years.
5.4 While referring to Explanation (1) to Section 153A of the
Act, it is contended that the "relevant assessment year" which
finds place in the provisions of Section 153A(b) of the Act
cannot be construed by adopting two different methodologies
- one wherein, for calculating the six assessment years, the
period would start from the previous year in which such
search is conducted or requisition is made, and for the very
same assessee, if it is found that the income of Rs.50 lakhs
has escaped, for calculating ten years, the first assessment
year has to be ignored. It is submitted that the expression
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"from the end of the assessment year" as mentioned in
Explanation (1) to Section 153A of the Act would mean that it
would commence from 1st April, and if we go backwards, in
the present case, the reopening of the assessment for the year
2015-16 would get encompassed within a period of ten years.
5.5 While placing reliance on the notes of the legislature
relating to the provisions of Section 153A and Explanation (1)
to Section 153A of the Act, it is contended that the word "end"
is missing, and hence it is contended that the intention of the
legislature was to exclude the word "end" from the statute. It
is further contended that if appropriate calculation is made,
the calculation of ten years of assessment years under
Explanation (1) to Section 153A of the Act would include the
previous year as per the provisions of Section 153A(1)(b) of
the Act. It is contended that considering the memorandum
and explanatory note of the Finance Act, 2017, the intention
of the legislature, even for the purpose of calculating ten
years, is to exclude the search year and it is always six plus
four years, and therefore "end" is to be construed as 1st April
for going backward.
5.6 An attempt is also made to distinguish the judgment of
the Delhi High Court in the case of Ojjus Medicare (supra),
by submitting that two methods cannot be adopted for
computation of the six-year block period as mentioned in
Sections 153A and 153C of the Act and for calculation of the
ten-year block period by excluding the previous year from
computation of ten years. Thus, it is urged that this Court may
take a different view, disagreeing with the judgments of the
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Delhi High Court as well as the Kerala High Court, and it is
urged that the action of the respondent may be upheld for
reopening the Assessment Year 2015-16.
ANALYSIS AND OPINION :
6. We have heard the learned advocates at length. We have
also perused the case laws cited above and have considered
the provisions threadbare.
7. The facts which are established from the pleadings are
that a search action under Section 153A of the Act was
undertaken on 23.11.2021, which indubitably falls in the
Financial Year 2021-22. The revenue found some
incriminating material against the present petitioner and
accordingly issued the impugned notices for reopening the
assessment for the year 2012-13. The notice has been issued
under Section 148 of the Act. With reference to the date of
search, it is necessary to refer to the provisions of Section
152(3) of the Act, which read as under:
"Section 152(3)
"Where a search has been initiated under section 132 or
requisition is made under section 132A or a survey is conducted
under section 133A [other than under sub-section (2A)] on or after
the 1st day of April, 2021 but before the 1st day of September,
2024, the provisions of section 147 to 151 shall apply as they stood
immediately before the commencement of the Finance (No. 2) Act,
2024."
Thus, since the date of search falls within the period
from the 1st day of April, 2021 to the 1st day of September,
2024, the provisions of Sections 147 to 151, as they stood
prior to the Finance Act (No. 2), 2024, shall apply.
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8. Section 149 (Old regime) of the Act reads thus:
"Time limit for notice.
149. (1) No notice under section 148 shall be issued for the
relevant assessment year, -
(a) if three years have elapsed from the end of the relevant
assessment year, unless the case falls under clause (b);
(b) if three years, but not more than ten years, have elapsed from
the end of the relevant assessment year unless the Assessing
Officer has in his possession books of account or other documents
or evidence which reveal that the income chargeable to tax,
represented in the form of-
(i) an asset,
(ii) expenditure in respect of a transaction or in relation to
an event or occasion, or
(iii) an entry or entries in the books of account,
which has escaped assessment amounts to or is likely to amount to
fifty lakh rupees or more:]
Provided that no notice under section 148 shall be issued at any
time in a case for the relevant assessment year beginning on or
before 1st day of April, 2021, if a notice under section 148 or
section 153A or section 153C could not have been issued at that
time on account of being beyond the time limit specified under the
provisions of clause (b) of sub-section (1) of this section or section
153A or section 153C, as the case may be, as they stood
immediately before the commencement of the Finance Act, 2021:
Provided further that the provisions of this sub-section shall not
apply in a case, where a notice under Section 153-A, or Section
153-C read with Section 153-A, is required to be issued in relation
to a search initiated under Section 132 or books of account, other
documents or any assets requisitioned under Section 132-A, on or
before the 31st day of March,2021."
8.1 Section 149(1)(b) of the Act refers to the limitation
period of ten years, which has elapsed from the end of the
"relevant assessment year". The relevant assessment year in
the present case is 2012-13, which is prior to the cut-off date
of 1st April, 2021, as specified in the first proviso. The link
between Section 149 and Sections 153A and 153C of the Act
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is found in the first proviso to Section 149(1) of the Act. The
expression "relevant assessment year" is explained under
Explanation 1 to the fourth proviso to Section 153A(1). The
first proviso to Section 149(1) of the Act bars the issuance of
notice under Section 148 of the Act for the relevant
assessment year beginning on or before 01st April, 2021, if a
notice under Section 148 or Section 153A or Section 153C of
the Act could not have been issued at that time on account of
it being beyond the time limit specified under the provisions
of clause (b) of sub-section (1) of Section 149 of the Act or
Section 153A or Section 153C of the Act. In the present case,
the notice under Section 148 of the Act emanates from the
search proceedings undertaken under Sections 132 / 132A of
the Act, and hence the provisions of Sections 153A and 153C
of the Act would get attracted, and the reassessment of the
petitioner has to be examined by keeping in mind the
limitation provided under Section 153C of the Act, which is
pari materia to Section 153A of the Act.
At this stage, we may refer to the provisions of Section
153A(1)(b) and Explanation (1) to Section 153A of the Act, on
which the learned advocates have premised their submissions.
Section 153A(1)(b) and Explanation (1) to Section 153A of the
Act read as under:
"SECTION 153A
Assessment in case of search or requisition.
153A. (1) Notwithstanding anything contained in section 139,
section 147, section 148, section 149, section 151 and section 153,
in the case of a person where a search is initiated under section
132 or books of account, other documents or any assets are
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requisitioned under section 132A after the 31st day of May, 2003,
the Assessing Officer shall-
XXX XXX XXX
(b) assess or reassess the total income of six assessment years
immediately preceding the assessment year relevant to the
previous year in which such search is conducted or requisition is
made and for the relevant assessment year or years:
Provided that the Assessing Officer shall assess or reassess the
total income in respect of each assessment year falling within such
six assessment years and for the relevant assessment year or
years):
Provided further that assessment or reassessment, if any, relating
to any assessment year falling within the period of six assessment
years and for the relevant assessment year or years referred to in
this sub-section pending on the date of initiation of the search
under section 132 or making of requisition under section 132A, as
the case may be, shall abate
Provided also that the Central Government may by rules made by it
and published in the Official Gazette (except in cases where any
assessment or reassessment has abated under the second provisoj,
specify the class or classes of cases in which the Assessing Officer
shall not be required to issue notice for assessing or reassessing
the total income for six assessment years immediately preceding
the assessment year relevant to the previous year in which search
is conducted or requisition is made and for the relevant assessment
year or years
Provided also that no notice for assessment reassessment shall be
issued by the Assessing Officer for the relevant assessment year or
years unless-
(a) the Assessing Officer has in his possession books of account or
other documents or evidence which reveal that the income,
represented in the form of asset, which has escaped assessment
amounts to or is likely to amount to fifty lakh rupees or more in the
relevant assessment year or in aggregate in the relevant
assessment years,
(b) the income referred to in clause (a) or part thereof has escaped
assessment for such year or years, and
(c) the search under section 132 is initiated or requisition under
section 132A is made on or after the 1st day of April, 2017
Explanation 1 For the purposes of this sub-section, the expression
"relevant assessment year shall mean an assessment year
preceding the assessment year relevant to the previous year in
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which search is conducted or requisition is made which falls
beyond six assessment years but not later than ten assessment
years from the end of the assessment year relevant to the previous
year in which search is conducted or requisition is made ."
8.2 The provisions of Sections 153A / 153C of the Act find
place in the proviso to Section 149 of the Act and, hence, the
limitation as provided in Sections 153A / 153C of the Act gets
triggered upon the initiation of assessment proceedings
emanating from a search under Sections 132 / 132A of the
Act. We may, at this stage, mention that the Delhi High Court
as well as the Madras High Court has already considered the
implications of Explanation (1) to Section 153A of the Act to
the limitation and the expression "relevant assessment year"
used therein in Explanation (1) to Section 153A of the Act.
The Delhi High Court, in the case of Ojjus Medicare (supra),
after considering an array of judgments of other High Courts
as well as of the Supreme Court and upon a threadbare
consideration and analysis of the statutory provisions of
Sections 153A, 148 and 149 of the Act, has held thus:
"88 Section 153A replicates the basis on which the six AYs' are
to be identified and computed with the solitary distinction being
that in the case of the searched person, the six AYs' are liable to be
computed from the AY pertaining to the FY in which the search
was conducted. The starting point for the purpose of identifying
the six AYs' in the case of section 153A would thus turn upon the
year of search as opposed to the handover of material which is
spoken of in the First Proviso to section 153C. If one were to
therefore assume that a search took place on a person between 01
April 2021 to 31 March 2022, the pertinent AY would become AY
2022-23 and the corresponding six AYs' would by as follows:
Computation of the six-year block period as No of years
provided under section 153C of the Act
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89. That takes us then to the issue of identifying the "relevant
assessment year" for the purposes of computing the ten year block.
Explanation 1 to section 153A specifies the manner in which the
entire ten AY period is to be computed. While the computation of
six AYs follows the position as enunciated and identified above,
Explanation I prescribes that the ten AYs' would have to be
computed from the end of the AY relevant to the FY in which the
search was conducted or requisition made The ten AY period
consequently is to be reckoned from the end of the AY
pertaining to the previous year in which the search was
conducted as distinct from the preceding year which is
spoken of in the case of the six relevant AYs.
90. Viewed in that light, and while keeping the period of 01 April
2021 to 31 March 2022 as the constant, the relevant AY would be
AY 2022-23. The ten AYs would have to be computed from 31
March 2023 with the said date indubitably constituting the end of
the AY relevant to the previous year of search. Viewed in light of
the above, the block period of 10 AYs would be as follows.-
Computation of the six-year block period No of years
as provided under section 153C read
with Section 153A of the Act
91 Tested on the aforesaid precepts, it would be manifest that
AY 2022-23 would form the first year of the block of ten AYs'
terminating in AY 2013-14. We, in this regard also bear in
consideration the following instructive passages as appearing in
the decision handed down by a learned Judge of the Madras High
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Court in A.R.Safiullah. We deem it appropriate to extract the
following paragraphs from that decision:-
"9 Explanation-I is clear as to the manner of computation of the
ten assessment years. It clearly and firmly fixes the starting point.
It is the end of the assessment year relevant to the previous year in
which search is conducted or requisition is made. There cannot be
any doubt that since search was made in this case on 10.04.2018,
the assessment year is 2019-20. The end of the assessment year
2019-20 is 31.03.2020. The computation of ten years has to run
backwards from the said date i.e. 31.03.2020. The first year will of
course be the search assessment year itself. In that event, the ten
assessment years will be as follows:
1st Year 2019-20
2nd Year 2018-19
3rd Year 2017-18
4th Year 2016-17
5 Year
th
2015-16
6th Year 2014-15
7th Year 2013-14
8 Year
th
2012-13
9th Year 2011-2012
10th Year 2010-2011
The case on hand pertains to AY 2009-10. It is obviously
beyond the ten year outer ceiling limit prescribed by the statute.
The terminal point is the tenth year calculated from the end of the
assessment year relevant to the previous year in which search is
conducted. The long arm of the law can go up to this terminal point
and not one day beyond. When the statute is clear and admits of no
ambiguity, it has to be strictly construed and there is no scope for
looking to the explanatory notes appended to statute or circular
issued by the department.
10. In the case on hand, the statute has prescribed one mode
of computing the six years and another mode for computing
the ten years. Section 153A(1)(b) states that the assessing
officer shall assess or reassess the total income of six years
immediately preceding the assessment year relevant to the
previous year in which search is conducted. Applying this
yardstick, the six years would go up to 2013-14. The search
assessment year, namely, 2019-20 has to be excluded. This is
because, the statute talks of the six years preceding the search
assessment year. But, while computing the ten assessment years,
the starting point has to be the end of the search assessment year.
In other words, search assessment year has to be including in the
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latter case. It is not for me to fathom the wisdom of the parliament.
I cannot assume that the amendment introduced by the Finance
Act, 2017 intended to bring in four more years over and above the
six years already provided within the scope of the provision. When
the law has prescribed a particular length, it is not for the court to
stretch it. Plasticity is the new mantra in neuroscience, thanks to
the teachings of Norman Doidge. It implies that contrary to settled
wisdom, even brain structure can be changed. But not so when it
comes to a provision in a taxing statute that is free of ambiguity
Such a provision cannot be elastically construed.
11. One other contention urged by the standing counsel has to be
dealt with. It is pointed out that the petitioner has invoked the writ
jurisdiction at the notice stage Since the petitioner has
demonstrated that the subject assessment year lies beyond the
ambit of the provision, the respondent has no jurisdiction to issue
the impugned notice Once lack of jurisdiction has been established,
the maintainability of the writ petition cannot be in doubt."
In our considered opinion, the decision in A.R Safiullah correctly
expounds the legal position and the interpretation liable to be
accorded to the identification of the ten AYs which are spoken of in
sections 153A and 153C."
8.3 Thus, it is precisely held hereinabove that the statute
prescribes different modes of computation for six years and
ten years. We reiterate that the provisions of Section 153A(1)
(b) of the Act stipulate that the Assessing Officer shall assess
or reassess the total income of six years immediately
preceding the assessment year relevant to the previous year
in which the search is conducted. However, the ten
assessment year period, consequently, is to be reckoned from
the end of the assessment year pertaining to the previous year
in which the search was conducted, as distinct from the
preceding year which is spoken of in the case of the six
relevant assessment years. Thus, the contention with regard
to the computation of six years as well as ten years under the
provisions of Section 153A of the Act has already been gone
into by the Delhi High Court as well as the Madras High
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Court, and we have no convincing reason to take a divergent
view from the view expressed hereinabove. Applying the
aforesaid computation to the facts of the present case, taking
the date of the search as 23.11.2021 during the Financial Year
2021-22, the Assessment Year 2022-23 will become the first
assessment year and, in the same manner, the Assessment
Year 2013-14 will become the tenth assessment year. Thus,
the year under consideration, namely, Assessment Year 2012-
13, for which the impugned notice has been issued under
Section 148 of the Act, would fall beyond the period of ten
years prescribed under the statute as it stood immediately
before the commencement of the Finance Act, 2021, and
hence, on this count, the impugned notice can be said to be
barred by limitation.
8.4 However, since an additional submission has been
advanced by learned Senior Standing Counsel Mr. Patel to the
extent that the expression used in the proviso to Section
149(1) of the Act, to the extent that "if a notice under Section
148 or Section 153A or Section 153C could not have been
issued at that time on account of being beyond the time limit
specified", would mean that the Assessing Officer is
competent to issue notice under Section 148 of the Act, since
he would only gain knowledge of incriminating material
against the third person after the search, and the limitation
prescribed under the provisions of Sections 153A or 153C of
the Act cannot restrict his power, and such limitation will
start running from the day of search. We fail to grasp the said
submission and the impact of such submission on the
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limitation prescribed in the first proviso, which relates to
Sections 153A or 153C of the Act. Hence, it is not dealt.
9. For the foregoing reasons, the impugned notice dated
29.03.2023 issued under Section 148 of the Income-tax Act,
1961 by the respondent - Department seeking to reopen the
income-tax assessment of the petitioner for the respective
assessment year is hereby quashed and set aside. The
petitions are allowed accordingly. RULE is made absolute
accordingly, with no order as to costs.
(A. S. SUPEHIA, J)
(PRANAV TRIVEDI,J)
SAJ GEORGE/DB/134
