Full Text
Decision delivered on: 05.01.2024
TWYLIGHT INFRASTRUCTURE PVT LTD ..... Petitioner
ARUN GARG ..... Petitioner
R.P. BASIA & CO. ..... Petitioner
SUSHMA GOEL ..... Petitioner
ADA NEWS IN SHORTS PVT LTD ..... Petitioner
ABHINAV JINDAL ..... Petitioner
MANGLA GUPTA ..... Petitioner
VANITA GULATI ..... Petitioner
SMT. SANTOSH GARG ..... Petitioner
RAHUL GOEL ..... Petitioner
MS RAMSONS ..... Petitioner
MS RAMSONS ..... Petitioner
E-SQUARE ALLIANCE PVT. LTD. ..... Petitioner
RAJEEV GOEL HUF ..... Petitioner
ASP DEVELOPERS PRIVATE LIMITED ..... Petitioner
SANTOSH INFRATECH PRIVATE LIMITED ..... Petitioner
NALINI GULATI ..... Petitioner
SANGITA GARG ..... Petitioner
ARCHNA KHATRI ..... Petitioner
GAMUT COMMERCIALS PRIVATE LIMITED ..... Petitioner
SRKK ASSOCIATES PRIVATE LIMITED ..... Petitioner
KHANNA COIR PRODUCTS LIMITED ..... Petitioner
BRIJ MOHAN BARWAL ..... Petitioner
OSS INFOCOM PRIVATE LIMITED ..... Petitioner
SONIA BARWAL ..... Petitioner
ALOK INFRA.BUILDERS PRIVATE LIMITED ..... Petitioner
ISRAR ALI KHAN ..... Petitioner
VIJAY KHEMKA ..... Petitioner
VISHAL JEWELLERS ..... Petitioner
SAURAV BANSAL ..... Petitioner
AZAM AHMED ..... Petitioner
KAILASH RANI ..... Petitioner
RAKESH SINGLA HUF ..... Petitioner
SUDERSHAN KUMAR SINGLA HUF ..... Petitioner
DEEPTI AHLAWAT ..... Petitioner
BHARAT BHUSHAN ..... Petitioner
ATUL SINGLA HUF ..... Petitioner
SAURAV BANSAL ..... Petitioner
NITIN SAXENA ..... Petitioner
NEERAJ SINGLA ..... Petitioner
ANURADHA KHAN ..... Petitioner
C.E. INFO SYSTEMS LIMITED ..... Petitioner
RAKESH KUMAR VERMA ..... Petitioner
SACHIT KUMAR SAHIJPAL ..... Petitioner
MOHAMMAD SHAFIQUDDIN ..... Petitioner
CHELSEA BLOCKS AND PIPES PRIVATE LIMITED..... Petitioner
DEVSHI EARTHMOVERS PRIVATE LIMITED ..... Petitioner
MK JAIN HUF ..... Petitioner
JYOTI GUPTA ..... Petitioner
NEW DELHI ..... Respondent
RAJEEV KUMAR CHAHAL ..... Petitioner
ROOP DIAMOND HOUSE PRIVATE LIMTED ..... Petitioner
MANOJ MITTAL ..... Petitioner
ANJANI STEELS LIMITED ..... Petitioner
S A S FININVEST LLP ..... Petitioner
SHIV KUMAR GOEL ..... Petitioner
DELHI & ANR. ..... Respondents
TANAY GAUR ..... Petitioner
UMA GOEL ..... Petitioner
KRBL LIMITED. ..... Petitioner
ORS. ..... Respondents
RITIKA GARG ..... Petitioner
NEERU JAIN ..... Petitioner
UPENDRA GULATI AND SONS HUF ..... Petitioner
VARUN DAHIYA ..... Petitioner
PARVEEN DEVI ..... Petitioner
VARUN DAHIYA ..... Petitioner
GEETU BHATIA ..... Petitioner
WELCOME SHOES PVT. LTD. ..... Petitioner
SANDEEP PAHWA ..... Petitioner
NARULA CHEMIST AGENCIES ..... Petitioner
SANGEETA SAHNI ..... Petitioner
DEVSHI EARTHMOVERS PRIVATE LIMITED ..... Petitioner
OPEN ONLINE SECURITIES PVT. LTD. ..... Petitioner
NITIN GARG ..... Petitioner INCOME TAX OFFICER WARD 43(1) DELHI ..... Respondent
GAURAV KUMAR KHANNA ..... Petitioner
DELHI ORS. ..... Respondent
HARSH VARDHAN BANSAL ..... Petitioner
M/S ATULYA REALTY VENTURES PRIVATE LIMITED..... Petitioner
AKHIL SINGLA ..... Petitioner
MEENU BANSAL ..... Petitioner
MAHIPAL SINGH ..... Petitioner
SANDHAR TECHNOLOGIES LIMITED ..... Petitioner
VK GLOBAL PUBLICATIONS PRIVATE LIMITED.... Petitioner
KAPIL GARG ..... Petitioner
RAJESH GUPTA ..... Petitioner
M/S CHANDRAMAULI BUILDCON PRIVATE LIMITED ..... Petitioner
TIA ENTERPRISES PVT LTD ..... Petitioner
SONAM GARG ..... Petitioner
DHAWAN EXIM PRIVATE LIMITED ..... Petitioner
KATHURIA CASTINGS PRIVATE LIMITED ..... Petitioner
VIKAS SPOOL PVT.LTD ..... Petitioner
ROOP DIAMOND HOUSE PRIVATE LIMITED ..... Petitioner
KASHISH AGGARWAL ..... Petitioner
SAKSHI GOEL ..... Petitioner
KULDIP SINGH GULATI ..... Petitioner
RAJESH GUPTA HUF ..... Petitioner
KANTA JAIN ..... Petitioner
VIRAT CREDIT AND HOLDINGS PVT LTD ..... Petitioner
ALPS INVESTMENTS PRIVATE LIMITED ..... Petitioner
ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1(1), W.P.(C) 7471/2023
E S P SAFETY PRIVATE LIMITED ..... Petitioner
SWIFT REALTECH PRIVATE LIMITED ..... Petitioner
LNG AGRICOM PRIVATE LIMITED ..... Petitioner
MIS MARS COMMODITIES PRIVATE LIMITED..... Petitioner
CARISSA INVESTMENTS PVT. LTD. ..... Petitioner
Mr Kapil Goel and Mr Sandeep Goel, Advs. in W.P.(C) 16524/2022, 1006/2023, 119/2023 & 387/2023.
Mr Ruchesh Sinha and Ms Monalisa Maity, Advs. in W.P.(C)
2558/2023, 2967/2023, 3009/2023, 3171/2023, 3546/2023 &
3896/2023.
Mr Salil Kapoor, Ms Ananya Kapoor, Mr Sanat Kapoor, Mr Sumit
Lalchandani, Mr Tarun Chanana and Mr Shivam Yadav, Advs. in
3678/2023.
Mr Ved Jain, Mr Nischay Kantoor and Mr Animesh Tripathi, Advs. in
Mr Akhilesh Kumar
Mr Abhishek Garg, Mr Yash Gaiha and Mr Ramesh Mankotia, Advs. for petitioner in W.P.(C)No.3001/2023.
Mr Nagesh Kumar Behl, Adv. for petitioner in W.P.(C)Nos.3335/2023 & 3338/2023.
Mr Nitin Gulati, Adv. in W.P.(C) 4614/2023.
Mr Keshav Dwivedi, Adv. in W.P.(C) 3295/2023.
Mr Manibhadra Jain, Adv. in W.P.(C) 4487/2023.
Mr Mayank Pachauri, Adv. in W.P.(C) 3880-3882, 3893/2023.
Mr Gaurav Gupta, Adv. in W.P.(C) 4003/2023.
Mr T Shivakumar
W.P.(C) nos. 4607, 4636/2023.
Mr Pankaj Kumar Saxena, Adv. in W.P.(C) 3295/2023.
Mr Gautam Jain
7174, 7279/2023.
Ms Ragini Handa
Mr Manuj Sabharwal
Mr Ajay Wadhwa
W.P.(C) nos.6453, 7085, 7497/2023.
Mr Anmol Jagga, Adv. in W.P.(C) 7529/2023.
Mr Varun Nagrath and Mr Abhishek Anand, Advocates for petitioner in WP(C) 7096/2023.
Counsel for Respondents: Mr Sunil Agarwal, Sr Standing Counsel
Tiwari, Adv. in W.P.(C) 2631/2023, 16524/2022 & 1813/2023.
Mr Ghanshyam Mishra, CGSC for R-3 in W.P.(C) 16524/2022.
Mr Abhishek Maratha, Sr Standing Counsel
Standing Counsel in W.P.(C)Nos.1566/2023, 720/2023, 1705/2023, 2812/2023, 3171/2023, 3546/2023, 3893/2023 & 3896/2023.
Mr Gaurav Gupta, Sr Standing Counsel
Mr Shivendra Singh, Jr Standing Counsels in W.P.(C)Nos.2876/2023, 2898/2023, 3677/2023 & 3678/2023.
Mr Kunal Sharma, Sr Standing Counsel
Standing Counsel along
W.P.(C)Nos.2967/2023, 3009/2023 & 4001/2023 Mr Aseem Chawla, Sr Standing Counsel
Subhasish Kumar and Ms Pratishtha Chaudhary, Advs. in
W.P.(C)No.3001/2023 & 2449/2023.
Mr Shailendera Singh, Sr Standing Counsel
Mr Sanjay Kumar, Sr Standing Counsel
387/2023.
Mr Zoheb Hossain, Sr Standing Counsel
992/2023.
Mr Vipul Agrawal, Sr Standing Counsel
Ms Sakshi Shairwal, Advs. for W.P.(C) nos.992, 3997, 5973, 5990, 6256, 6967, 7169, 7443/2023.
Mr Ruchir Bhatia, Sr Standing Counsel
Mr Shlok Chandra, Sr Standing Counsel
Ms Dacchita Shahi, Standing Counsel for revenue in W.P.(C)
7529/2023.
Mr Puneet Rai, Sr Standing Counsel
Rishabh Nangia, Standing Counsels in W.P.(C)Nos.2876/2023, 3335/2023, 3338/2023, 4377/2023, 4443/2023, 6440/2023, 6453/2023, 6532/2023, 6657/2023, 6660/2023, 6794/2023, 7146/2023
& 7497/2023.
Mr Akash Vajpai, Adv. for UOI in W.P.(C) 4487/2023.
Mr Santosh Kumar Pandey, Adv. for UOI in W.P.(C) 7529/2023.
Mr Siddharth Khatana, Adv. for UOI in W.P.(C) 7096.
Mr Rakesh Kumar Dudeja, Adv. for UOI in W.P.(C) 7529/2023.
HON'BLE MS JUSTICE TARA VITASTA GANJU [Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL):
JUDGMENT
1. The above-captioned writ petitions concern Assessment Year (AY) 2016-17 and AY 2017-18.
2. The core issue involved in the writ petitions is whether the impugned notices and orders are sustainable in law, having regard to the contention of the petitioners that they are not backed by the approval of the specified authority.
3. Since the issue is common to the above-captioned writ petitions, the broad facts concerning one of the matters i.e., WP(C) 7289/2023, titled Rajesh Gupta HUF v Assistant Commissioner of Income Tax and Ors. are noted hereafter.
3.1. The petitioner/Hindu Undivided Family (HUF) filed its return of income (ROI) qua AY 2017-18 on 09.06.2017 declaring an income of Rs.66,88,500/-. The ROI was processed by the revenue and an intimation was issued to the petitioner/HUF under Section 143(1) of the Act on 21.11.2017.
3.2. In the aftermath of the judgement in Union of India v Ashish Agarwal (2023) 1 SCC 617, the revenue issued a notice dated 26.05.2022 under Section 148A(b) of the Act to the petitioner.
3.3. The petitioner filed a reply dated 14.06.2022 qua the said notice.
3.4. Thereafter, the revenue passed an order under Section 148A(d) of the Act dated 29.07.2022 holding that income amounting to Rs.4,37,56,000/had escaped assessment. A consequential notice of even date i.e., 29.07.2022 was also issued to the petitioner under Section 148 of the Act.
3.5. A perusal of the order under Section 148A(d) and the notice under Section 148 would show that they have been passed/issued after obtaining the prior approval of the Principal Commissioner of Income Tax-10, Delhi.
3.6. The petitioner approached the court via the aforementioned writ petition on 18.05.2023, inter alia, raising the issue with regard the approval of the specified authority being absent.
3.7. The petition came up for hearing before a coordinate bench [which included one of us i.e., Rajiv Shakdher J.] on 25.05.2023 and it was directed that there shall be a stay on the continuation of reassessment proceedings.
3.8. Thereafter, the petition was listed with the above-captioned batch of petitions on several dates and arguments were heard on behalf of the assessees and the revenue.
4. Counsel for the parties state that the reassessment proceedings were triggered by an authority not specified, as per the provisions of Section 151(ii) of the Income Tax Act, 1961 [in short, “Act”].
4.1. In defence of the writ petitions, the revenue, inter alia, has relied upon Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [in short, “TOLA”] and paragraphs 6.[1] and 6.2(ii) of the Instruction No.1 of 2022 dated 11.05.2022 issued by the Central Board of Direct Taxes [in short, “CBDT”].
5. In Ganesh Dass Khanna v. Income Tax Officer & Anr. 2023: DHC: 8187-DB, we have ruled in favour of the assessees and against the revenue insofar as the issue concerning limitation was concerned. 5.[1] Insofar as the batch which was considered in the aforementioned judgment, the alleged escaped income was less than Rs.50,00,000/-. As far as the current batch of writ petitions is concerned, concededly, the escaped income is more than Rs.50,00,000/-.
6. A faint argument is made on behalf of the revenue that the approval of the specified authority is not mandatory, which, in our opinion, is in the teeth of the provisions of the Act. In this behalf, the old Section 151 and the amended version of the provision (after Finance Act 2021) are made reference to.
6.1. For the sake of convenience, the provisions of Sections 148, 149 and 151, before and after amendment are extracted hereafter: Prior to Finance Act 2021
7. A careful perusal of the above extract would show that after amendment, Section 151 has been split and the part which enjoins that the approval of the specified authority is mandatory stands embedded in the first proviso to Section 148.
7.1. The concerned specified authorities, depending on the applicable timeframe, are adverted to in Section 151 of the Act.
8. The first proviso to Section 148 and Section 151, when read conjointly, demonstrate the untenability of the submission made on behalf of the revenue.
9. We may also note that in Ganesh Dass Khanna, we were considering the provision of Section 149 of the Act and have taken the view that since the escaped income was less than Rs.50,00,000/-, the time limit as prescribed in Section 149(1)(a) of the Act would apply.
10. As indicated above, the specified authority changes depending on the time limit prescribed in Section 151 of the Act. It is on this account that there is linkage between ruling rendered in Ganesh Dass Khanna and the instant matters.
11. It may also be noted that in Ganesh Dass Khanna, we had recorded the stand of the revenue that the issue concerning limitation and the specified authority are “intertwined”. For convenience, the relevant part of the judgement is extracted hereafter:
12. Clearly, the revenue advanced the argument of interlinkage between limitation and the ascertainment of the specified authority due to the plain language of the amended Section 151 of the Act. Section 151, when read alongside the first proviso to Section 148, brings the aspect of inextricable linkage to the fore.
12.1. Clauses (i) and (ii) of Section 151 of the amended Act (which has been extracted hereinabove) clearly specify the authority whose approval can trigger the reassessment proceedings. Thus, if three (3) years or less have elapsed from the end of the relevant AY, the specified authority who would grant approval for initiation of reassessment proceedings will be the Principal Commissioner or Principal Director or Commissioner or Director. However, if more than three (3) years from the end of the relevant AY have elapsed, the specified authority for according approval for reassessment shall be the Principal Chief Commissioner or Principal Director General or, where there is no Principal Chief Commissioner or Principal Director General, Chief Commissioner or Director General.
12.2. That the approval is mandatory is plainly evident on perusal of the first proviso appended to Section 148 of the Act. the said proviso, at the risk of repetition, reads as follows: “…Provided that no notice under this section shall be issued unless there is information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant assessment year and the Assessing Officer has obtained prior approval of the specified authority to issue such notice….”
12.3. In these cases, there is no dispute that although three (3) years had elapsed from of the end of the relevant AY, the approval was sought from authorities specified in clause (i), as against clause (ii) of Section 151.
12.4. Before us, the counsel for the revenue continue to hold this position. The only liberty that they seek is that if, based on the judgement in Ganesh Dass Khanna, the impugned orders and notices are set aside, liberty be given to the revenue to commence reassessment proceedings afresh.
13. Therefore, having regard to the aforesaid, the impugned notices and orders in each of the above-captioned writ petitions are quashed on the ground that there is no approval of the specified authority, as indicated in Section 151(ii) of the Act. The direction is issued with the caveat that the revenue will have liberty to take steps, if deemed necessary, albeit as per law.
14. Needless to add, the rights and contentions of both the sides will remain open, in the event the revenue triggers reassessment proceedings.
15. The above-captioned writ petitions are disposed of, in the aforesaid terms.
16. Consequently, the pending applications shall stand closed.
RAJIV SHAKDHER, J TARA VITASTA GANJU, J JANUARY 5, 2024 /aj