Madhya Pradesh High Court
Sita Ram Gautam vs Deputy Commissioner Of Income Tax ... on 20 April, 2023
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WP No. 8416 of 2023
(SITA RAM GAUTAM Vs DEPUTY COMMISSIONER OF INCOME TAX CIRCLE KATNI AND OTHERS)
Dated : 20-04-2023
Shri Sapan Usrethe - Advocate for the petitioner.
Shri Siddharth Sharma - Advocate for respondents through Video
conferencing.
Challenge herein is to the notice under Section 148 (P-1) as well as the
order under Section 148 A (d)(P-2) of the amended Income Tax Act, 1961.
Learned counsel for petitioner referring to the decision of Apex Court in
Union of India and others vs. Ashish Agarwal rendered on 04.05.2022
reported in (2022) 326 CTR (SC) 473, in particular paragraphs 7, 8 and 10 of
the said judgment, submits that the Apex Court has allowed the assessee to
raise all possible objections including those available u/S. 149 of the amended
Income Tax Act, which inter alia provides thus:
"149. Time limit for notice- (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 ha in his possession books of accounts or other
documents, or evidence which reveal that the income chargeable
to tax, represented in the form of asset, which has escaped
assessment amounts to or is likely to amount to fifty lakh rupees
or more for that year.
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 such notice 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
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 4/21/2023
10:51:30 AM
this Section, 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 153A, or section
153C read with Section 153A, 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 132A, on or
before the 31st day of March, 2021.
Provided also that for the purposes of computing the period of
limitation as per this section, the time or extended time allowed to
the assessee, as per show-cause notice issued under clause (b) of
section 148A or the period during which the proceeding under
section 148A is stayed by a order or injunction of any court, shall
be excluded:
Provided also that where immediately after the exclusion of the
period referred to in the immediately preceding proviso, the
period of limitation available to the Assessing Officer for passing
an order under clause (d) of section 148A is less than seven days,
such remaining period shall be extended to seven days and the
period of limitation under this sub-section shall be deemed to be
extended accordingly.
Explanation.- For the purpose of clause (b) of this sub-section,
"asset" shall include immovable property, being land or building
or both, shares and securities, loans and advances, deposits in
bank account.
(2) The provisions of sub-section (1) as to the issue of notice shall
be subject to the provisions of section 151]"
Learned counsel Shri Usrethe has pointed out by referring to Annexure
P/1 and Annexure P/2 that the quantum of income which alleged to have
escaped assessment is Rs.14,30,000/- which is much less than Rs.50 Lacs
prescribed u/S. 149(1) (b). It is also pointed out by Shri Usrethe that by interim
order dated 01.03.2023 involving similar issue, the co-ordinate Bench at Indore
of this Court has stayed similar notices u/S.148 and order under 148A(d) of
the amended Income Tax Act.
Learned counsel for the Revenue Shri Siddharth Sharma is unable to
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 4/21/2023
10:51:30 AM
satisfy this Court on the question as to whether an order could be issued
u/S.148A(d) and, thereafter a notice u/S. 148 of the amended Income Tax Act
when quantum of income which escaped assessment is alleged to be less than
50 lacs. Shri Sharma, however, has relied upon CBDT circular/instruction No.1
of 22 dated 11.05.2022 in particular paragraph 6.0 and the sub paragraphs.
Prima facie it appears that even if the CBDT letter provides otherwise,
the same cannot supplant the statutory provision u/S. 149 of the Income Tax
Act and therefore, prima facie the petitioner appears to have made out a case
for admission and interim relief.
Accordingly, as an interim relief, it is directed that the notice u/s 148 of
the amended Income Tax Act dated 25.07.2022 (Annexure P/1) and the order
dated 21.07.2022 (Annexure P/2) u/S.148A(d) of the amended Income Tax Act
shall remain stayed, till the next date of hearing.
Revenue/respondents is directed to file reply.
List after summer vacation.
(SHEEL NAGU) (DWARKA DHISH BANSAL)
JUDGE JUDGE
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Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 4/21/2023
10:51:30 AM
