[Cites 17, Cited by 0]
Gujarat High Court
Nilay Desai vs Deputy Commissioner Of Income Tax, ... on 23 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. 1093 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Sd/-
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Approved for Reporting Yes No
✔
=============================================
NILAY DESAI
Versus
DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2),
AHMEDABAD
=============================================
Appearance:
MR. TUSHAR HEMANI, SENIOR ADVOCATE with MS VAIBHAVI K
PARIKH(3238) 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 : 23/02/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Heard learned Senior Advocate Mr.Tushar Hemani
appearing with learned Advocate Ms.Vaibhavi K. Parikh for
the petitioner and learned Senior Standing Counsel
Mr.Varun K. Patel, for the respondent.
2. Having regard to the controversy involved, with the
consent of the learned advocates for the respective
parties, the matter is taken up for final hearing. Rule
returnable forthwith.
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3. By this petition under Article 226 of the Constitution of
India, the petitioner challenges the notice dated
26.03.2025 issued under Section 148 of the Income Tax
Act, 1961 (hereinafter referred to as "the Act" for short)
seeking to re-open income tax assessment of the
petitioner for the Assessment Year 2014-15 (hereinafter
referred to as "the assessment year under consideration"
for short) by the Deputy Commissioner of Income Tax,
Central Circle 2(2), Ahmedabad (hereinafter referred to as
"the respondent" for short).
3.1 The petitioner is an individual, who filed his return of
income for the assessment year 2014-15 on 28.11.2014
declaring total income at Rs.64,05,260/-. The petitioner is
one of the major partners of PSY Group which is engaged
in the business of real estate.
3.2 The said PSY group and its associated groups of
Gandhinagar including the petitioner were subjected to
search action u/s 132 of the Act on 08.02.2024. In the
Satisfaction Note prepared for assumption of jurisdiction, it
was stated that some incriminating material, both physical
and digital had been found which confirmed that PSY and
its associated groups had entered into unaccounted
transactions through various firms. One such incriminating
material being, a 1 GB transcade pendrive found from the
premise of Piyush Thakur, a general manager of Dev
group, one of associated groups of PSY, contained tally
data which contained individual ledgers of various
partners of PSY group including that of the petitioner for
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the period from 01.04.2008 to 31.03.2019. Based on the
said ledger, it was contended that the petitioner had
indulged into unaccounted transactions resulting into
escapement of income and hence, the notice dated
26.03.2025 has been issued under Section 148 of the Act
for assessment year 2014-15 after obtaining prior approval
of DGIT(Investigation), Ahmedabad.
4. The petitioner has challenged the said notice u/s 148 of
the Act on the ground of limitation.
5. Learned Senior Advocate Mr. Tushar P. Hemani for the
petitioner submitted that the respondent has acted
illegally and without jurisdiction while issuing Notice under
Section 148 of the Act as the same is barred by limitation.
It was further contended that the impugned notice is time-
barred under the statutory scheme governing search
assessment. It was submitted that in the present case,
search action in question was carried out on 08.02.2024
i.e. during the Financial Year 2023-24. Since the search
under Section 132 of the Act was initiated on or after 1 st
April, 2021 but before 1st September, 2024, the provisions
of Sections 147 to 151 of the Act as they stood
immediately before the commencement of Finance (No. 2)
Act, 2024 shall apply as contemplated under Section
152(3) of the Act. 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 the Section 153A
of the Act, he would submit that notice under Section 153A
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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.
5.1 It is further submitted that the "relevant assessment year"
means 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".
5.2 Reference is also made to the provisions of Section 149 of
the Act, more particularly the proviso to Section 149 read
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.
5.3 It is submitted that in the instant case, the search action
was carried out in the case of third party on 08.02.2024
i.e. during the Financial Year 2023-24, and hence relevant
assessment year to the previous year in which the search
was undertaken under Section 132 of the Act is
Assessment Year 2024-25. It is further submitted that the
notice under Section 148 of the Act for the Assessment
Year 2014-15 would be time-barred, as the period of ten
years would end at the Assessment Year 2015-16, since
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the Assessment Year 2024-25 will become the first
assessment year as per the provisions of Section 153A of
the Act. The table showing the calculation was placed
before this Court and the same is reproduced as under:
Number Assessment Year
1st year Assessment Year 2024-25
2nd year Assessment Year 2023-24
3rd year Assessment Year 2022-23
4th year Assessment Year 2021-22
5th year Assessment Year 2020-21
6th year Assessment Year 2019-20
7th year Assessment Year 2018-19
8th year Assessment Year 2017-18
9th year Assessment Year 2016-17
10th year Assessment Year 2015-16
5.4 In support of his submissions, learned Senior Advocate Mr.
Hemani has placed reliance on the judgment of the Delhi
High Court in the case of Dinesh Jindal v. Assistant
Commissioner of Income-tax [2024] 164 taxmann.com
746/469 ITR 32 (Delhi)/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) v. Ojjus
Medicare (P.) Ltd. [2024] 161 taxmann.com 160/465 ITR
101 (Delhi). Finally, he has also placed reliance on the
judgment of Madras High Court, Bench at Madurai, passed
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in A.R. Safiullah v. ACIT [Writ Petition (MD) No. 4327 of
2021, dated 24-3-2021].
5.5 Thus, it is urged that the impugned notice issued under
Section 148 of the Act for the assessment year 2014-15
may be quashed and set aside.
6. Per contra, learned Senior Standing Counsel Mr. Varun
Patel for the respondent-Department opposed the petition.
The following submissions are made by the Mr. Patel
appearing on behalf of the revenue.
6.1 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 "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 2014-15 would get encompassed within a period of
ten years.
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6.2 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 submitted that the
intention of the legislature was to exclude the word "end"
from the statute. It is further submitted 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 submitted
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 1 st April for going
backward.
6.3 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 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 2014-15.
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6.4 It was further submitted that applying the decision in case
of Bhavin Kishorbhai Zinzuwadia v. Assistant
Commissioner of Income Tax reported in [2024] 169
Taxmann.com 505 (Guj.), wherein this court has accepted
the calculation of ten assessment years for the purpose of
Section 153C of the Act excluding the search year / the
year in which the incriminating material is received by the
JAO of the other person.
6.5 Thus, it is urged that the action of the respondent in
issuing the impugned notice for the A.Y. 2014-15 under
Section 148 of the Act may be upheld and the present
petition may be dismissed.
7. We have heard the learned advocates for the respective
parties at length. We have also perused the case laws
cited, considered the provisions threadbare and have also
perused the material on record.
8. The sole issue that arises for consideration in the present
petition is that -
(i) Whether the notice issued by the respondent for the
Assessment Year 2014-15 is barred by limitation;
(a) Dealing with this issue, uncontroverted facts are that the
search took place in the case of the petitioner on
08.02.2024 which indisputably falls in the Financial Year
2023-24. Therefore, the date of search would be taken
into consideration for the purpose of initiation of
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proceedings under Section 153A of the Act. Keeping that
legal principle in mind, ten years that could be covered
subject to fulfilling other conditions emanating from the
statute, would be as under:
Number Assessment Year
1st year Assessment Year 2024-25
2nd year Assessment Year 2023-24
3rd year Assessment Year 2022-23
4th year Assessment Year 2021-22
5th year Assessment Year 2020-21
6th year Assessment Year 2019-20
7th year Assessment Year 2018-19
8th year Assessment Year 2017-18
9th year Assessment Year 2016-17
10th year Assessment Year 2015-16
(b) The only difference between the calculation as per the
revenue and the petitioner is the inclusion or exclusion of
the search year. Revenue contends that while calculating
the period of ten years, search year is to be excluded and
the calculation starts from assessment year immediately
preceding the previous year relevant to the assessment
year in which search is conducted whereas the
petitioner's contention is that the calculation of the
period of ten years would include the search year.
(c) The short controversy turns upon whether, while
computing the ten-year block, the assessment year
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relevant to the previous year in which search is
conducted (hereinafter "the search assessment year") is
to be included in the reckoning, unlike the computation of
six assessment years which expressly excludes it.
(d) With reference to the relevant assessment year, it is
necessary to refer to the provisions of Section 153A(1)(b)
of the Act which reads as under :
"Section 153A(1)(b)
(The Assessing Officer shall) 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."
The key expression that flows from reading of the
section is "six assessment years immediately preceding
the assessment year relevant to the previous year in
which such search is conducted" and "for the relevant
assessment year or years." is phrased independently,
disjointed from earlier phrase.
(e) In juxtaposition, the Fourth Proviso permits assessment
beyond six years subject to specified conditions and
refers to "relevant assessment year" as stated in
Explanation 1 that defines "relevant assessment year"
as:
"For the purpose of this sub-section, the expression
"relevant assessment year" shall mean an assessment year
preceding the assessment year relevant to the previous
year in 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
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relevant to the previous year in which search is conducted
or requisition is made."
(f) The key expression that flows from reading of the section
is "not later than ten assessment years from the end of
the assessment year relevant to the previous year in
which search is conducted".
Thus, the computational framework of Section 153A
of the Act, including Explanation 1, applies pari materia
to the proceedings under Section 153C of the Act.
A plain reading of Section 153A of the Act reveals
that the Parliament has consciously adopted two different
phraseologies:
Six-Year Block Ten-Year Block
"six assessment years "not later than ten
immediately assessment years from the
preceding" end of the assessment year"
This linguistic distinction is deliberate and must be
given full effect. Under Section 153A(1)(b) of the Act, the
anchor point is "the assessment year relevant to the
previous year in which search is conducted". Therefore,
six years must be "immediately preceding" that
assessment year. The phrase "immediately preceding"
necessarily excludes the search assessment year itself. In
contrast thereto, Explanation 1 introduces a materially
different formulation: "not later than ten assessment
years from the end of the assessment year relevant to
the previous year in which search is conducted". This
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computation mechanism does not use the phrase
"immediately preceding" but instead, requires reckoning
from the end of the assessment year relevant to the
previous year of search. Thus, the assessment year
relevant to the previous year of search becomes the
reference year and the ten-year period is counted from
the end of that assessment year. This necessarily
includes the search assessment year within the ten-year
framework and resultantly, the search year becomes the
first year in the reckoning of the ten-year block.
(g) If Parliament intended identical computation for both six
and ten years, it would have used identical language.
Instead, it has consciously used different phraseology, for
six years "immediately preceding" and for ten years
"from the end of the assessment year". Legally, it is well
settled that while interpreting plain language of a
Statute, the Court must give meaning to every word used
by the Legislature. To compute ten years by excluding
the search year (as is done for six years) would render
the phrase "from the end of the assessment year" otiose
and merge two distinct statutory schemes into one that
would violate settled principles of statutory
interpretation. The scheme of Section 153A reflects
calibrated expansion in as much as ordinary search
assessment would be computed as six years immediately
preceding the search year whereas exceptional extended
jurisdiction up to ten years is not a mere arithmetic
extension of the six-year model; it is governed by a
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separately structured computational rule. The
Legislature, in its wisdom, has consciously created:
A backward-looking "preceding" model (six years),
and
A reckoning "from the end of the assessment year"
model (ten years).
Thus, it can be concluded that Section 153A of the
Act prescribes two distinct and independent
computational regimes. The six assessment years are
those "immediately preceding" the assessment year
relevant to the previous year of search, thereby
excluding the search year whereas the ten assessment
years under Explanation 1 are to be computed "from the
end of the assessment year" relevant to the previous
year of search. The statutory language necessarily results
in inclusion of the search assessment year within the ten-
year reckoning. Any interpretation that applies the six-
year exclusion model, if made applicable to the ten-year
block, would defeat the legislative scheme and render
material words redundant. Accordingly, while computing
the extended ten-year period under Explanation 1 to
Section 153A read with Section 153C of the Act, the
assessment year relevant to the previous year of search
is to be included in the reckoning.
(h) Even otherwise, this issue is no more res integra as the
same is covered by the judgement of this Court in the
case of Jayantibhai Karamshibhai Maniya versus Income-
tax Officer reported in [2026] 182 taxmann.com 493
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(Guj.). This Court has taken a view, after considering the
earlier judgement in the case of Bhavin Zinzuwadia
(supra), that while calculating the period of ten years
under Section 153C of the Act, keeping in mind the
language of Explanation 1 to Section 153A of the Act, the
search year or the year in which seized material is
received by the JAO of the petitioner is required to be
taken into consideration. Relevant extract of the said
judgement can be usefully referred to as under:
"9.2 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 (P.) Ltd.
(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
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would become AY 2022-23 and the corresponding six
AYs' would by as follows:
Computation of the No of years
six-year block period as provided
under section 153C of the Act
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 2023with 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 No of
period as provided under section 153C years
read with Section 153Aof the Act
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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
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
5th Year 2015-16
6th Year 2014-15
7th Year 2013-14
8th Year 2012-13
9th Year 2011-2012
10th Year 2010-2011
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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 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
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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 sections153A and
153C."
9.3 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 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 09.05.2024
during the Financial Year 2024-25, the Assessment Year
2025-26 will become the first assessment year and, in the
same manner, the Assessment Year 2016-17 will become
the tenth assessment year. Thus, the year under
consideration, namely, Assessment Year 201516, 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. "
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9. In the facts of the present case, admittedly the search was
conducted on 08.02.2024, therefore impugned notice
under Section 148 of the Act dated 26.03.2025 for A.Y.
2014-15 is barred by limitation as the same falls beyond
the permissible period of ten years. We, therefore, quash
and set aside the notice dated 26.03.2025 issued under
Section 148 of the Act for assessment year 2014-15 on the
ground of limitation. RULE is made absolute accordingly,
with no order as to cost.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(PRANAV TRIVEDI,J)
MAHESH/52
