- The order has been issued by Hon’ble Supreme court by invoking Article 142 of the constitution of India and hence applicable PAN India. However, it is still under ambiguity whether the above judgement will only be applicable to those assessee who have filed Writ petition or all the assessee irrespective of whether Writ was filed or not.
- The Supreme court has not completely endorsed or reversed judgement of High courts, as High Courts have also mentioned that AO were free to issue notice under section 148 substituted by Finance Act 2021 wherever available. Apex court has also mentioned that AO can only conduct enquiry under new provisions and as a remedy Supreme court has instead of quashing earlier notice deemed the already issued notice under section 148 as show cause notice u/s 148A(b) and have kept all the remedial measures open for assessee in the new reassessment proceedings law.
- Further, AO needs to provide information or material relied upon to the assessee within 30 days from the date of this order i.e. till 02.06.2022 and assessee shall reply to it within 2 weeks from the date of receipt of notice containing information. This timeline shall become a part of law as order has been passed by invoking Article 142 of the Constitution and accordingly assessee needs to check whether the above timelines are followed or not.
- The requirement for conducting an enquiry before 148 notice has been done away with as a one time measure for such cases and as such they were not mandatory.
- After assessee submits response to show cause notice, AO needs to pass order u/s 148A(d) and then if the objections filed by assessee are not found suitable it needs to issue notice u/s 148 against which assessee needs to file Income Tax return. It is to be noted that assessee needs to again file Income tax return even if it has already filed Income Tax return against earlier 148 notice.
- It has been mentioned that all defences available under new law will be available to the assessee and specifically defence of time line under section 149 of the Income Tax Act. Thus, all the assessee should consider first proviso to section 149(1) and if the notice u/s 148 could not be issued at that time i.e. between 01.04.2021 to 30.06.2021 under the old provision, no notice can be issued now. Considering this it appears that:
(a)?for AY 2013-14 and AY 2014-15 notice u/s 148 cannot be issued under new 148 section even after the judgement by Hon’ble Supreme Court as 6 years have lapsed on 31.03.2021.
(b)?for AY 2015-16 also the above defence can be taken as 6 years have lapsed on 31.03.2022 and new 148 notice will be issued now i.e. in June 2022 i.e. after lapse of 6 years and
(c)??for remaining years one can check the applicability of limitation of 3 years and 10 years prescribed by the law under the new provision of section 149 of the I.T. Act.
Also, one needs to check whether the information based on which the reassessment has been initiated is a part of criterion of flagged in accordance with the risk management strategy as it is important requirement for conducting reassessment proceedings under the new provision.
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