Banyan Capital Advisors LLP v. Income Tax Officer Ward 4 (2) Delhi

1. This petition relates to the Assessment Year (AY) 2015-16. The petition has been filed with the following prayers: “a. Issue of a writ of certiorari, mandamus, prohibition or any other writ and/or order and or directions quashing the impugned INVALID order passed u/s 148A(d) of the Act dated 30.06.2022 and impugned INVALID present notice issued u/s 148 dated 30.06.2022 and impugned INVALID original notice u/s 148 dated 30.06.2021 ON BASIS OF VARIOUS ALTERNATE JURISDICTIONAL GROUNDS AS RASIED IN THE PRESENT PETITION b. Issue a writ in the nature of mandamus or an order prohibiting the operation and / or stay of impugned proceedings as deemed fit and proper in the facts and circumstances of the present case as initiated by the respondent u/s 148 of the 1961 Act;”

2. The submission of the learned counsel for the petitioner is that this petition is covered by the judgment of the Hon’ble Supreme Court in the case of Union of India v. Rajeev Bansal (2024)469 ITR 46 (SC) as followed by this Court in the case of Makemytrip India Private Limited v. DCIT W.P.(C) 2557/2023 and also subsequent judgment(s)

3. Suffice it to state in Makemytrip India Private Limited (supra) this Court has stated as under:

8. “In a subsequent decision in Union of India and Others v. Rajeev Bansal: 2024 INSC 754, the Supreme Court considered the manner of applicability of the provisions of Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [TOLA]. During the said proceedings it was conceded on behalf of the Revenue that TOLA was not applicable for reopening the assessments for AY 2015-16. The said concession was recorded in paragraph 19(f) of the said decision. Paragraphs 19 (e) and 19(f) of the said decision are relevant and are set out below: - “(e) The Finance Act 2021 substituted the old regime for re-assessment with a new regime. The first proviso to Section 149 does not expressly bar the application of TOLA. Section 3 of the TOLA applies to the entire Income Tax Act, including Sections 149 and 151 of the new regime. Once the first proviso to Section 149(1)(b) is read with TOLA, then all the notices issued between 1 April 2021 and 30 June 2021 pertaining to the assessment years 2013-2014, 2014-2015, 2015- 2016, 2016-2017, and 2017-2018 will be within the period of limitation as explained in the tabulation below: Assessment Year (1) Within 3 Years(2) Expiry Limitation read with TOLA for (2)(3) Within six Years(4) Expiry of Limitation read with TOLA for (4)(5) 2013-2014 31.03.2017 TOLA not applicable 31.03.2020 30.06.2021 2014-2015 31.03.2018 TOLA not 31.03.2021 30.06.2021 2015-2016 31.03.2019 TOLA not 31.03.2022 TOLA not 2016-2017 31.03.2020 30.06.2021 31.03.2023 TOLA not 2017-2018 31.03.2021 30.06.2021 31.03.2024 TOLA not (f) The Revenue concedes that for the assessment year 2015-2016, all notices issued on or after 1 April 2021 will have to be dropped as they will not fall for completion during the period prescribed under the TOLA.”

9. Following the aforesaid concession, this court in Ibibo Group Private Limited v Assistant Commissioner of Income Tax Circle 10-1, & Anr.: W.P.(C) 17639/2022 decided on 13.12.2024 allowed the petition challenging a similar notice for AY 2015-16 which was issued beyond the period of limitation as concededly TOLA was not applicable. Similar orders has also been passed by other courts as well.

10. In The Income Tax Officer Ward 1(2) Jaipur v R.K. Build Creations Pvt Ltd: Special Leave Petition (Civil) Diary NO. 59625/2024 the Supreme Court dismissed the SLP arising from a similar decision rendered by the Hon’ble Rajasthan High Court in DBCWP No.14414/2022. The said order is set out below: - “Delay condoned. Having regard to the concession made by the petitioner-Department in the case of Union of India vs. Rajeev Bansal, Civil Appeal no.8629 of

754), this Special Leave Petition would not survive for further consideration. Hence, the Special Leave Petition is dismissed. Pending application(s), if any, shall stand disposed of.”

11. In the present case the impugned notice was issued on 27.07.2022, which was admittedly beyond the period of limitation as prescribed under Section 149(1) of the Act. Since TOLA was not applicable in respect of the said notices under Section 148 of the Act for AY 2015-16 as conceded by the Revenue in the case of Union of India v. Rajeev Bansal: 2024 INSC 754 (supra), the impugned notice is liable to be set aside.

12. Accordingly, the impugned notice and proceedings emanating from the said notice are set aside.

13. The petition is allowed in the aforesaid terms.”

4. In the present case, the impugned notice issued under Section 148 dated 30.06.2022 was admittedly beyond the period of limitation as prescribed under Section 149(1) Income Tax Act of 1961.

5. Since Taxation and Other Laws (Relaxation & Amendment of Certain Provisions) Act' (TOLA)' 2020 was not applicable in respect of the notices issued under Section 148 of the Act for AY 2015-16, as conceded by the revenue in the case of Rajeev Bansal (supra), the impugned notice is liable to be set aside.

6. Suffice to state, the learned counsel for the revenue does not dispute the applicability of the judgment in the case of Rajeev Bansal (supra) as followed by this Court in the case of Makemytrip India Private Limited (supra).

7. Accordingly, the impugned notice and proceeding emanating from the notice dated 30.06.2022 are set aside.

8. The petition along with pending application(s), if any, is disposed of.