PANKAJ KUMAR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The batch of writ petitions challenge notices issued under Sec. 148 of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') and some of them also challenge the order issued under Sec. 144 read with Sec. 147 of the Act and the notice of demand issued pursuant to the assessment orders.

(2.) The question of law raised in the writ petitions, filed under Article 226 of the Constitution of India, is as to whether sub-sec. (5A) of Sec. 45 of the Act; inserted by the Finance Act, 2017, with effect from 1/4/2018, apply retrospectively. The petitioners also contend that if it is held to be prospective, as is the consequence of the express words employed in the Finance Act, then it would violate Article 14 of the Constitution of India on the ground of invidious discrimination between the same class of persons. It is also argued that sub-sec. (5A) has been brought into the Income Tax Act to remove unintended consequences of the earlier provision for computation of capital gains on a conjoint reading of Ss. 2(47)(v), 45 and 48. In such circumstances, the same should be considered as retrospective, despite the recitals in the Finance Act indicating it to be prospective. Insofar as the orders passed, which were also challenged in some of the writ petitions, the challenge made is to the very jurisdiction exercised by the Assessing Officer; relying on the judgment of the Hon'ble Supreme Court in Commissioner of Income Tax vs. Balbir Singh Maini; (2018) 12 SCC 354.

(3.) We heard Shri D.V.Pathy, learned counsel for the writ petitioners and Dr. K.N.Singh, learned Additional Solicitor General, instructed by Smt. Archana Sinha, learned senior standing counsel for the Income Tax Department.