Notices issued under Section 148 of the Income Tax Act are invalid if not issued within the prescribed time limits following the Supreme Court's guidelines.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)

1. Heard learned Senior Counsel Mr.Tushar Hemani appearing with Mr.Parimalsinh Parmar, advocate for the petitioner and learned Senior Standing Counsel Mr.Karan Sanghani, for the respondent.

2. Having regard to the controversy involved which is in narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing.

3. Rule returnable forthwith. Learned Senior Standing Counsel Mr.Karan Sanghani, waives service of notice of rule.

4. By this petition under Article 226/227 of the Constitution of India, the petitioner has challenged assessment order dated 27.07.2022 passed by Respondent No.1 under Section 148A(d) of the INCOME TAX ACT , 1961 (For short “the Act”) which inter alia propose to re-open the assessment.

5. The brief facts are as under:

6. The petitioner filed return of income for the Assessment Year 2013-14 on 28.04.2016.

7. A notice dated 30.6.2021 was issued under Section 148 of the Act under the provisions of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (For short “TOLA”).

8. Pursuant to the decision of the Hon’ble Supreme Court in case of Union of India vs. Ashish Agarwal reported in [2022] 138 taxmann.com 64 , the respondent issued notice dated 21.05.2022 under Section 148 A(b) of the Act. The respondent thereafter passed an order dated 27.07.2022 under Section 148 A(d) of the Act alleging that income to the extent of Rs.1,80,60,000/- had escaped assessment. Pursuant to the order dated 27.07.2022, notice u/s. 148 came to be issued on 27.07.2022. This order u/s.148A(d) as well as notice u/s.148 are challenged in the present petition.

9. Learned Senior Counsel Mr.Tushar Hemani, at the outset, submitted that during the pendency of this petition, the Apex Court in case of Union of India v. Rajeev Bansal , reported in 469 ITR 46 (SC) has reversed the decision tendered by this Court in Keenara Industries Pvt. Ltd. v. Income Tax Officer (Supra) and has prescribed the modalities to consider validity of the notice issued under TOLA between 31.3.2021 and 30.6.2021.

10. It was submitted that as held by the Hon’ble Apex Court in case of Union of India v. Rajeev Bansal (Supra), as the notice issued under TOLA is dated 30.6.2021, only one day was available for issuance of notice, after giving opportunity of filing reply to the assessee. From the date of passing of the order by the Apex Court in case of Union of India v. Ashish Agarwal (Supra) i.e. 21.5.2022, 14 days time was provided to the assessee to reply to the above notice. Therefore, the last date for filing the reply by the assessee was 5.6.2022, which in the instant case was submitted on 06.06.2022. Therefore, the last date to issue notice, as per the judgment of the Apex Court in case of Union of India v. Rajeev Bansal (Supra) would be 13.6.2022, whereas the impugned notice under Section 148 is issued on 27.7.2022. It was therefore, submitted that the notice dated 30.6.2021 which will relate to the notice dated 27.7.2022 as per order passed by the Apex Court in the case of Union of India v. Rajeev Bansal (Supra), would be invalid notice. Reliance was placed on following paragraphs of the Hon’ble Apex Court wherein the situation is explained in detail in paragraph Nos.92, 93 and paragraph Nos. 110 to 114:

“92. This Court specifically mentioned that its directions would also apply to three categories: (i) the judgment and order passed by the High Court of Judicature at Allahabad; (ii) all judgments and orders passed by the different High Court on the issue where notices issued under Section 148 of the old regime af