$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14997/2024 & CM APPL. 62833/2024 (interim relief)
M.G METALLOY PRIVATE LIMITED .....Petitioner
Through: Mr. Ved Jain, Mr. Nischay Kantoor,
Ms. Soniya Dodeja, Mr. Divyansh
Dubey & Mr. Govind Gupta,
Advocates.
versus
ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL
CIRCLE 2 DELHI & ORS. .....Respondents
Through: Mr. Ruchir Bhatia, SSC with Mr.
Anant Mann, JSC, Mr. Abhishek
Anand & Ms. Pranjal Singh,
Advocates.
Ms. Babita Saini, SPC with Mr. Kapil
Dev Yadav, Mr. Govil Upadhyaya,
Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
O R D E R
% 29.10.2024
1. The petitioner has filed the present petition, inter alia, impugning
notice dated 31.07.2024 (hereafter the impugned notice) issued under
Section 148 of the Income Tax Act, 1961 (hereafter the Act) in respect of
assessment year (AY) 2012-13.
2. The impugned notice is clearly beyond the period as stipulated under
Section 149(1) of the A
ct. However, it is the Revenue‟s case that the
impugned notice has been issued within the stipulated time by virtue of the
non-obstante clause under Section 150 of the Act. The Revenue claims that
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the impugned
notice is premised on the „findings and directions‟ as
embodied in the decision of the Supreme Court in Principal Commissioner
of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd.: (2024) 2 SCC 433.
In the said decision, the Supreme Court had held that in certain cases, the
assessing officer (AO) could exercise its powers under Section 147/148 of
the Act, even in cases which are related to a search conducted under Section
132 of the Act. The Revenue construes the decision as constituting a finding
or a direction for issuing such notices in respect of cases such of the
assessee‟s.
3. The question whether the decision in the case of Principal
Commissioner of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd.
(supra) constitutes a finding and a direction for permitting the issuance of
notice under Section 148 of the Act in cases, which are otherwise beyond
the period as stipulated under Section 149 of the Act is no longer res
integra. This Court in the case of ARN Infrastructures India Ltd. v.
Assistant Commissioner of Income Tax Cental Circle-28 Delhi & Ors.:
Neutral Citation No.:2024:DHC:7423-DB had rejected a similar
contention. The relevant extract of the said decision is set out below:
38. It is pertinent to note that a reference to Sections 147 and
“
148 of the Act in Abhisar Buildwell firstly appears in paragraph
33 of the report and where the Supreme Court observed that in
cases where a search does not result in any incriminating
material being found, the only remedy that would be available to
the Revenue would be to resort to reassessment.
39. However, the Supreme Court caveated that observation by
observing that the initiation of reassessment would be
“…..subject to fulfilment of the conditions mentioned in Sections
147/148, as in such a situation, the Revenue cannot be left with
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no remedy is sentiment came to be reiterated with the
”. Th
Supreme Court observing that the power of the Revenue to
initiate reassessment must be saved failing which it would be left
with no remedy. It was thereafter observed in paragraph 36.4 of
the report that insofar as completed or unabated assessments
were concerned, they could be reopened by the AO by
invocation of Sections 147/148 of the Act, subject to the
fulfillment of the conditions
“……as envisaged/mentioned under
Sections 147/148 of the Act and those powers are saved
”.
40. It thus becomes apparent that the liberty which the Supreme
Court accorded and the limited right inhering in the Revenue to
initiate reassessment was subject to that power being otherwise
compliant with the Chapter pertaining to reassessment as
contained in the Act. The observations of the Supreme Court
cannot possibly be read or construed as a carte blanche enabling
the respondents to overcome and override the restrictions that
otherwise appear in Section 149 of the Act. The observations of
the Supreme Court in Abhisar Buildwell were thus intended to
merely convey that the annulment of the search assessments
would not deprive or denude the Revenue of its power to
reassess and which independently existed. However, the
Supreme Court being mindful of the statutory prescriptions,
which otherwise imbue the commencement of reassessment,
qualified that observation by providing that such an action would
have to be in accordance with law. This note of caution appears
at more than one place in that judgment and is apparent from the
Supreme Court observing that the power to reassess would be
subject to the fulfilment of the conditions mentioned in Sections
147 and 148 of the Act.
”
4. Plainly, the controversy involved in this petition is covered by the
decision of this Court in ARN Infrastructures India Ltd. v. Assistant
Commissioner of Income Tax Cental Circle-28 Delhi & Ors. (supra). The
contention that the time period as stipulated under Section 149 of the Act is
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not applicable, in the given facts, is erroneous and thus rejected.
5. The petition is, accordingly, allowed and the impugned notice is set
aside. Pending application is also disposed of.
VIBHU BAKHRU, J
SWARANA KANTA SHARMA, J
OCTOBER 29, 2024/at
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