LEAD ADVERTISING Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has approached this Court being aggrieved by the fact that proceedings have been initiated against the petitioner under Sec. 148 of the Income Tax Act, 1961 (as it stood before 1/4/2021), despite the fact that, notice under Sec. 148 of the Income Tax Act was received by the petitioner only after 1/4/2021. The petitioner has a case that the proceedings are in violation of the principles of natural justice. It is also contended that the 'National Faceless Assessment Scheme' is 'ultra vires the Constitution and hence void'.

(2.) The petitioner, a partnership firm, is an asessee under the Income Tax Act, 1961 (hereinafter referred to as 'the Act'). It received Ext.P.2 notice dtd. 30/3/2021 issued under Sec. 148 of the Act. The notice pertains to the assessment year 2015-16. According to the petitioner, the said notice was received by the petitioner only on 15/4/2021. This was followed by Ext.P.3 notice issued on 14/9/2021 under Sec. 142(1) of the Act calling for information from the petitioner for finalizing the assessment. The petitioner responded to this notice by submitting Ext.P.4 reply. A further notice (Ext.P.5) was issued under the same provision on 23/11/2021. Thereafter the petitioner received Ext.P.6 notice calling upon the petitioner to register itself on the e-filing portal of the Income Tax Department to enable issuance of notices etc. by electronic means. The petitioner has therefore approached this Court raising the contentions already noticed above and impugning the Ext.P.2, P.3, P.5 and P.6 notices issued to the petitioner.

(3.) Mr.Ravikrishnan, the learned counsel appearing for the petitioner submits that going by the judgment of the Supreme Court in Union of India & Ors. v. Ashish Agarwal, 2022 SCC OnLine SC 543 (judgment dated 04.-05-2022 in Civil Appeal No. 3005/2022 and Connected Cases), the proceedings could have been continued only under the amended provisions of the Income Tax Act, as brought into force with effect from 1/4/2021. It is submitted that if the amended provisions were to apply, the petitioner would have to be issued the show cause notice prior to initiation of proceeding under Sec. 148 of the Income Tax Act. It is submitted that the amendments brought into force with effect from 1/4/2021 are only curative and therefore there must be deemed to have retrospective effect. He relies on Craies on Statute Law1, to contend that statutes passed to protect the public from some 'evil' or 'abuse' should be held retrospective. He also placed reliance on the article "The Supreme Court and the Constitutionality of Retrospective Legislation"2, to contend that since the amendments brought in are curative, it should be held retrospective. It is submitted that 1. S.G.G. EDGAR, CRAIES ON STATUTE LAW 395 (6th ed. 1963). 2. Charles B. Hochman, The Supreme Court and the Constitutionality of Retrospective Legislation, 73 HARV. LAW REV. 692, 704 -705 (1959 -1960). the Supreme Court in Ashish Agarwal (supra) has clarified that in respect of all notices issued after 1/4/2021, the amended provisions will apply and therefore, the petitioner is entitled to a declaration that the proceedings shall be continued against the petitioner only under the amended provisions of the Act. The learned counsel also places reliance on the judgment of the Supreme Court in Allied Motors (Pvt.)Ltd. vs. Commissioner of Income Tax, Delhi, AIR 1997 SC 1361 to contend that when the amendment is curative, it has to apply retrospectively and will apply to all pending matters, notwithstanding the fact that the amendment was brought into force only from a particular date.