W.P.(C) Nos. 27594/2021, 27569/2021 and 27529/2021, High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **WP(C) NO. 27594 OF 2021** ## **PETITIONER:** MOHAMMED THRASSERI AGED 54 YEARS RINOOS HARDWARE, DD MALAPPURAM, KERALA PIN 676 521 BY ADVS. LATHA ANAND M.N.RADHAKRISHNA MENON S.VISHNU (ARIKKATTIL) ## **RESPONDENT:** INCOME TAX OFFICER WARD 1(3), KOZHIKKODE, OFFICE OF THE INCOME TAX OFFICER, AAYAKAR BHAVAN, NORTH BLOCK, NEW ANNEXE BUILDING, MANANCHIRA, KOZHIKODE, KERALA 673 001 ## **OTHER PRESENT:** SRI. CHRISTOPHER ABHARAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, ALONG WITH WP(C).27569/2021, 27529/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.27594/2021 & conn.cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** ## **WP(C) NO. 27569 OF 2021** ## **PETITIONER:** UNNIAN KUTTY AGED 66 YEARS KIZHAKKEKUNNUMMAL HOUSE, CHENGARA, IRIVETTY PO KAVANOOR, MALAPPURAM, PIN-673 639. BY ADVS. LATHA ANAND M.N.RADHAKRISHNA MENON ## **RESPONDENT:** INCOME TAX OFFICER WARD-1 & TPS, TIRUR, OFFICE OF THE INCOME TAX OFFICER, NO.20/1240, TARIFF BAZAR, TOWNHALL ROAD, TIRUR, KERALA, PIN-676 101. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, ALONG WITH WP(C).27594/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.27594/2021 & conn.cases 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** ## **WP(C) NO. 27529 OF 2021** ## **PETITIONER:** M/S. PAINT SHOPEE, PANDIKKAD, MALAPPURAM, KERALA 676 521, REPRESENTED BY ITS MANAGING PARTNER, SRI. SHAMEER BABU. BY ADVS. LATHA ANAND M.N.RADHAKRISHNA MENON S.VISHNU (ARIKKATTIL) ## **RESPONDENT:** INCOME TAX OFFICER, WARD-2, TIRUR, OFFICE OF THE INCOME TAX OFFICER, CHEMBRA, TIRUR, MALAPPURAM DISTRICT 680 001. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, ALONG WITH WP(C).27594/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.27594/2021 & conn.cases 4 ## **JUDGMENT** ## **[WP(C) Nos.27594/2021, 27569/2021, 27529/2021]** The petitioners in these cases were issued with notices under Section 148 of the Income Tax Act. The petitioners have approached this Court stating that after the amendment brought into Section 148 by the Finance Act of 2021, the procedure under Section 148A had to be followed before re-assessment proceedings were initiated by the Department. 2. Today, when the matter is taken up for consideration, it is the submission of the learned counsel appearing for the petitioners in these cases that the matter now stands covered by the judgment of the Supreme Court in _**Union of India (UOI) and Ors.**_ v. _**Ashish Agarwal; (2022) 444 ITR 1 (SC)**_ , where it has been held as follows:- _“10. In view of the above and for the reasons stated above, the present Appeals are ALLOWED IN PART. The impugned common judgments and orders passed by the High Court of Judicature at Allahabad in W.T. No. 524/2021 and other allied tax appeals/petitions, is/are hereby modified and substituted as under:-_ _“(i) The impugned section 148 notices issued to the respective Assessees which were issued under unamended section 148 of the IT Act, which were the subject matter of writ petitions before the various respective High Courts shall be deemed to have been issued under section 148 of the IT Act as substituted by the Finance Act, 2021 and construed or treated to be show-cause notices in terms of section 148A(b). The assessing officer shall, within thirty days from today provide to the respective Assessees information and material relied upon by the Revenue, so that the Assesees can reply to the show-cause notices within two weeks thereafter;_ _(ii) The requirement of conducting any enquiry, if required, with the prior approval of specified authority under section 148A(a) is hereby dispensed with as a one-time measure vis-a-vis those notices which have been issued under section 148 of the unamended Act from 01.04.2021 till date, including those which have been quashed by the High Courts._ W.P.(C)No.27594/2021 & conn.cases 5 _Even otherwise as observed hereinabove holding any enquiry with the prior approval of specified authority is not mandatory but it is for the concerned Assessing Officers to hold any enquiry, if required;_ _(iii) The assessing officers shall thereafter pass orders in terms of section 148A(d) in respect of each of the concerned Assessees; Thereafter after following the procedure as required under section 148A may issue notice under section 148 (as substituted);_ _All defences which may be available to the assesses including those available under section 149 of the IT Act and all rights and contentions which may be available to the concerned Assessees and Revenue under the Finance Act, 2021 and in law shall continue to be available.”_ 3. The learned Standing Counsel appearing for the Department does not dispute the above position and states that the judgment of the Supreme Court covers these matters also. Accordingly, these writ petitions will stand disposed of directing that notices issued under Section 148 of the Income Tax to the petitioners shall be treated as show-cause notices under Section 148A of the Income Tax Act. Thereafter, the proceedings shall be completed in the manner directed by the Supreme Court in the judgment referred to above. Sd/- **GOPINATH P. JUDGE** acd W.P.(C)No.27594/2021 & conn.cases 6 ## **APPENDIX OF WP(C) 27569/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED 30.6.2021, ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT. Exhibit P2 TRUE COPY OF NOTICE DATED 10.11.2021 UNDER SECTION 142(1) OF THE INCOME TAX ACT. Exhibit P3 TRUE COPY OF THE ORDER DATED 3.6.2021 IN WRIT PETITION (L) NO.11766 OF 2021 BOMBAY HIGH COURT. Exhibit P4 TRUE COPY OF THE INTERIM ORDER DATED 2.9.2021 IN WPC 17655 OF 2021. Exhibit P5 TRUE COPY OF INTERIM ORDER DATED 29.9.2021 IN WPC 20476 OF 2021. W.P.(C)No.27594/2021 & conn.cases 7 ## **APPENDIX OF WP(C) 27529/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE NOTICE DATED 30/06/2021| ||ISSUED UNDER SECTION 148 OF THE INCOME TAX| ||ACT.| |Exhibit P2|TRUE COPY OF NOTICE DATED 10/11/2021 UNDER| ||SECTION 142 (1) OF THE INCOME TAX ACT.| |Exhibit P3|TRUE COPY OF THE ORDER DATED 03/06/2021 IN| ||WRIT PETITION (L) NO. 11766 OF 2021.| |Exhibit P4|TRUE COPY OF THE INTERIM ORDER DATED| ||02/09/2021 IN WPC 17655 OF 2021.| |Exhibit P5|TRUE COPY OF INTERIM ORDER DATED 29/09/2021| ||IN WPC 20476 OF 2021.| W.P.(C)No.27594/2021 & conn.cases 8 ## **APPENDIX OF WP(C) 27594/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE NOTICE DATED 30/06/2021,| ||ISSUED UNDER SECTION 148 OF THE INCOME TAX| ||ACT.| |Exhibit P2|TRUE COPY OF NOTICE DATED 11/08/2021 UNDER| ||SECTION 142(1) OF THE INCOME TAX ACT.| |Exhibit P3|TRUE COPY OF THE ORDER DATED 3/6/2021 IN WRIT| ||PETITION (L) NO.11766 OF 2021 BOMBAY HIGH| ||COURT| |Exhibit P4|TRUE COPY OF THE INTERIM ORDER DATED 2/9/2021| ||IN WPC 17655 OF 2021| |Exhibit P5|TRUE COPY OF INTERIM ORDER DATED 29/9/2021 IN| ||WP(C) 20476 OF 2021|