Decoding Tax Dynamics: Unravelling Legal Complexities in Income Tax Reassessment Notices under Section 148, IT Act Post-Finance Act, 2021

Introduction

The landscape of the Income Tax Act of 1961¹ underwent a substantial transformation with the implementation of the Finance Act, 2021 (FA)², bringing about significant revisions to the provisions governing the reopening of assessments. Effective from 1-4-2021, these amendments replaced the established framework articulated in Sections 147³, 148⁴, 149⁵ and 151⁶ of the Income tax Act, 1961 with an entirely new structure encapsulated within the same sections.⁷ A noteworthy addition to this revamped system was the introduction of Section 148-A⁸, outlining novel procedures for the initiation of reopening and reassessment proceedings.

The genesis of this restructuring can be traced back to the “Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (TOLA)⁹”, which responded to the protracted ramifications during the period. The issuance of notices along with other requirements that needs compliance were to be extended through the TOLA legislation under Section 3¹⁰, while granting the Central Government the authority to further extend these timelines through notifications. In conjunction with these extensions, the Finance Act of 2021, officially enacted on March 28 of the same year, implemented consequential adjustments to the reassessment process outlined in the IT Act. On the onset of the new Section 148-A being in force marked the significant increase in the procedural safeguards whereunder the strict specific conditions are to be followed prior to issuance of notice under the section. The following changes took effect from 1-4-2021.¹¹

During this transitional period, the Central Board of Direct Taxes (CBDT) leveraging the provisions of TOLA, exercised its discretion thereby allowing the extension of the deadline for issuance of notices keeping in mind the pre-amendment reassessment provision of Section 148 until 30-6-2021¹². This extension, however, occurred in the backdrop of the Finance Act’s implementation, which had already ushered in new provisions from 1-4-2021. In the wake of these developments, numerous number of notices for reassessment had been filled following the procedure of the previous regime as under Section 148 post-April 2021, without adhering to the technical safeguards introduced by the Finance Act, 2021. This prompted the filing of numerous writ petitions challenging the validity of these notices before various High Courts.

The ensuing legal conundrum raises critical questions regarding the interplay between the recent changes being introduced by the Finance Act, 2021, and the extensions granted under the Transfer of Property Act, 1882 (TPA)¹³. This intricate scenario, marked by a clash of timelines and procedural frameworks, has set the stage for a complex legal discourse. Several High Courts weighed in on this existing legal debate and a majority of them sided with the assesses, ruling that amendments introduced through the Finance Act, 2021 should be made applicable to the respective notices that were issued post-March 2021. This rationale of the High Courts emphasises the lack of existence of pre-amendment provisions since the Finance Act, 2021 was enforced and any attempt to defer amendments would contravene legislative mandates. In response to divergent decisions from various High Courts, the Revenue appealed the common judgment to the Supreme Court in Ashok Kumar Agarwal v. Union of India¹⁴. In the midst of this legal turmoil, the Supreme Court’s judgment in Ashish Agarwal case¹⁵ not only breathes new life into numerous reassessments but also introduces a nuanced judicial perspective on extending leeway to the Revenue. While the statutory foundation of this decision remains under scrutiny, it establishes a noteworthy precedent in navigating the intricate balance between legislative mandates, judicial discretion, and the exigencies of tax assessments. The ripple effects of this consequential decision are poised to shape the contours of future tax jurisprudence, adding another layer of complexity to an already intricate legal landscape.

Issues giving rise to litigations around the states

1. Did the Finance Act, 2021 amendments lead to a legal quagmire in context of income tax reassessment thereby leading to clash between old and new provisions?

2. Do the procedural changes in sections 147 to 151 change the reassessment procedure and what is the legislative clarity on it?

3. How will the interpretation of statues and amendments play out considering the difference of opinion of varied high courts and supreme court?

4. The condition of the taxpayers in lieu of 90,000 notices issued finding themselves in midst of uncertainty.

Decoding the procedure laid down by the amendments introduced by the Finance Act, 2021

1. Procedure prior to amendments introduced by the Finance Act, 2021

Before the Finance Act, 2021 introduced amendments to the Income Tax Act, Section 148¹⁶ primarily focused on issuing notices for reassessment that involved a systematic approach. The assessing officer (AO) would notify an assessee through a notice specifying the need for furnishing income returns. The return had to follow prescribed formats, and the provisions of the Income Tax Act were applied accordingly. The validity of notices¹⁷ was subject to specific conditions. Under Section 147 applicable until 31-3-2021, reopening an assessment was allowed only if no scrutiny assessment had been conducted. The AO under the new regime had the power to issue a notice under Section 148 within 6 years since the date when the previous AY was over. However, for such reopening to occur, strict time-limits were in place based on the elapsed time from the relevant assessment year wherein the AO needed concrete evidence justifying the belief that there was income escaping assessment, rather than a mere change of opinion. The Supreme Court upheld the AO’s power to reopen proceedings, provided there was “tangible material” supporting the conclusion that income had escaped assessment and that substantial evidence indicating escapement was necessary.¹⁸ Importantly, the satisfaction of higher-ranking authorities was a prerequisite for issuing notices after the initial four-year period. This system aimed to ensure a structured and fair process in dealing with assessments and reassessments.

2. Procedure post amendments introduced by the Finance Act, 2021

Following the Amendments, the procedure for issuing notices under Section 148 underwent significant changes, introducing Section 148-A¹⁹. Now, before issuing any notice under Section 148, the assessing officer must adhere to the procedures outlined in Section 148-A, effective from 1-4-2021. The AO must serve a notice under Section148-A²⁰, post which opportunity of being heard to be given. An assessee has to reply to it and considering it within one month the AO depending on the specified authority’s prior approval being mandatory condition keeping in mind the time lapsed has to issue notice under Section 148. The time- limit for issuing a notice has been reduced to 3 years from the date of end of the relevant AY. Also, a financial threshold is introduced which states if more than 3 years but less than 10 years have passed, the AO can issue a notice only if the income, represented as an asset, sums to or is likely to amount to “fifty lakh rupees or more”²¹. The specified authority, financial thresholds, and approval requirements are interlinked, ensuring a more stringent and time-sensitive reassessment process. The Court’s intervention in quashing notices underscores the importance of adhering to these new procedural requirements. The amendment also includes specific circumstances where this procedure is not applicable, such as cases involving searches, requisition of books, or information received under certain schemes. It is important to note that failure to follow this procedure may render the notice invalid. While the amendment provides a structured framework, it also raises the issue of appealability, which is not explicitly addressed in Section 246-A²², potentially leading to writ petitions in cases of jurisdictional excess by the assessing officer.

Analysis of the various High Court judgments

1. High Court of Allahabad

Case — “Ashok Kumar Agarwal v. Union of India”

The understanding of the learned court was that when a new law replaces an existing one, the old provisions cease to exist unless expressly saved. The Court emphasised that since there was no saving clause in this case, the Court concluded that the substituted provisions of the Finance Act, 2021, applied from 1-4-2021. The Court rejected the argument that the enabling Act could override the Finance Act, stating that the enabling Act only extended timelines and did not delegate power to save the pre-existing provisions. The Court highlighted that reassessment proceedings, initiated after 1-4-2021, must follow the amended law.²³

2. High Court of Calcutta

Case — “Manoj Jain v. Union of India”

The Judges rejected the argument that the enabling Act, along with notifications issued under it, could extend the applicability of the old provisions beyond 31-3-2021. They clarified that the enabling Act only had the power to extend time-limits and could not overrule the Finance Act, 2021. It affirmed that reassessment proceedings initiated under the old law after 1-4-2021, lacked jurisdiction. The decision aligned with the principle that a delegated legislation cannot defeat the principal legislation. The Court concluded that the disputed clarifications were ultra vires of Relaxation Act, 2020, making them invalid. As a result, all notices under Section 148 were quashed, allowing for the initiation of fresh reassessment proceedings under the amended law.²⁴

3. High Court of Delhi

Case — “Mon Mohan Kohli v. CIT”

The Court concluded that the new provisions, effective from 1-4-2021, aimed to simplify tax administration, reduce litigation and most importantly increase trade and business. The Court emphasised that the legislative intent was to protect the rights of taxpayers and enhance public interest. In essence, the Court held that the changes introduced by the Finance Act, 2021 were procedural, not substantive. Ignoring this legislative intent, the Court reasoned, would be against the principles of justice and efficiency. The Court stressed that this change should apply even to proceedings related to past assessment years, provided the Section 148 notice was issued on or after 1-4-2021. The Court negated the stand taken by both the parties with rights being vested and also gave reference of “M.P. Steel Corpn. v. CCE²⁵” being applied to the case. The Court found contradictions in the respondents’ stance, noting that they argued against the applicability of the FA 2021 to past AY while admitting its applicability from 1-7-2021, onwards. The Court emphasised the procedural nature of the amendments, citing Circular No. 549 of 1989²⁶. The Court also refuted the “legal fiction” argument, stating that there was no provision in the Relaxation Act, 2020 deeming actions within the extended time-limit as if taken before the original deadline.²⁷

4. High Court of Rajasthan

Case — “BPIP Infra (P) Ltd. v. CIT”

The Court’s decision rested on fundamental legal principles considering Parliament’s conscious legislative acts, the Court noted the enactment of the enabling Act to extend time limitations and the subsequent substantive changes introduced by the Finance Act, 2021. This legislative sequence occupied the field, leaving no room for manipulation by the delegate. In conclusion, the Court held that the executive cannot use administrative powers to undermine parliamentary Acts like the Finance Act, 2021, and that attempts to frustrate the purpose of the new statutory provisions were not justified.²⁸

5. High Court of Bombay

Case — “Tata Communications Transformation Services Ltd. v. CIT”

The Court’s decision rested on several key points wherein it acknowledged that Section 4²⁹ of the Relaxation Act, falling under Chapter III, allowed the legislature itself to make amendments to the substantive provisions of the Income Tax Act however, the Court declared the explanations in the notifications as ultra vires and null and void. It pointed out that these explanations sought to extend the applicability of certain sections but failed to cover Section 147, crucial for reopening assessments. The Court also noted non-compliance with the amended Section 147 procedures. In summary, the Court ruled in favour of the petitioners, stating that the explanations in the notifications were invalid, and the impugned notices were quashed. The Court clarified that the reassessment proceedings for the Assessment Year 2013-2014 were initiated within the extended time-frame granted by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020³⁰ (TOLA). The Court highlighted that Section 149, as amended by the Finance Act, 2021, allowed the extension of the time-limit until 30-6-2021. The Court referenced its earlier judgment, which invalidated certain explanations in notifications but upheld the extension of the reassessment period until 30-6-2021. In conclusion, the Court dismissed the writ petition, stating that the reassessment notice was not time-barred, and rejected the challenge to a specific paragraph in the CBDT Instruction No. 1/2022³¹. The Court clarified that the assessing officer should decide the matter impartially, unaffected by observations made in the order, except regarding the issue of limitation.³²

6. High Court of Allahabad

Case — “Rajeev Bansal v. Union of India”

The Court concluded that the quashing of the notices of reassessment where the previous non- amended section was used was not in line with the law. However, the correct procedure would have been to mark it as deemed notices as per the new amended section of 148-A introduced by the Finance Act, 2021. The Court was of the view that the reassessment proceedings could continue following the new regime of the Income Tax Act as per Sections 147, 148, 149 and 151, subject to compliance with procedural requirements and defences available to the assessee. The Court rejected the Revenue’s argument that TOLA 2020 only extended the period and did not affect the amended provisions introduced by the FA 2021. In contrast to a Delhi High Court judgment, the Court held that the first proviso to Section 149 (as amended by the FA 2021) remained applicable for the Assessment Year 2013-2014, and the extensions granted did not alter this provision.³³

Analysis of the Supreme Court judgment

The recent landmark judgment by the Supreme Court (SC) in Union of India v. Ashish Agarwal³⁴ has ignited extensive legal discourse and examination, particularly in the intricate domain of reassessment proceedings under the Income Tax Act, 1961. A thorough exploration is warranted to dissect the nuanced dimensions and implications embedded in this judicial pronouncement. The SC, in its meticulous examination, delved into the sweeping amendments introduced by the Finance Act, 2021 (FA 21) to the reassessment procedure under the Income Tax Act, 1961. A pivotal addition was Section 148-A, intricately laying down condition’s precedent for the initiation of reassessment under Section 148. FA 21 was lauded for its attempt to streamline and fortify the procedural safeguards initially outlined in GKN Driveshafts decision³⁵. Additionally, the statutory time-limit for issuing a notice under Section 148 was truncated to three years from the close of the relevant assessment year.

The SC, in its penetrating analysis, characterised the amendments ushered in by FA 21 as “benevolent” and “remedial”. These changes were deemed as radical and reformative, specifically designed to overhaul the reassessment process and provide enhanced protections to taxpayers undergoing such scrutiny. The SC’s alignment with the perspective that these amendments should apply to reassessment notices post-1-4-2021, showcased a judicial inclination towards upholding the spirit of legislative reforms.

However, the SC did not shy away from addressing the conundrum posed by reassessment notices issued under the unamended Section 148. Quashing these notices, the SC recognised, would entail a disruptive halt to ongoing reassessment proceedings. Acknowledging the “bona fide mistake” on the part of the Revenue, which issued notices under the old provisions due to the extension of limitation, the SC deemed it imperative to display a measure of leniency. In response to this quandary, the SC issued directives that carved a unique path forward. Notices issued under the unamended Section 148 were not to be summarily quashed. Instead, they were to be treated as show-cause notices under Section 148-A(b). The assessing officers (AOs) were mandated to furnish relevant information to the assessees within a specified 30-day period, allowing a subsequent two-week window for response. The aim of the procedural transition was to make sure that rights are not denied to both parties and thereby making sure to balance it.

Exercising its constitutional jurisdiction under Article 142, the SC extended the reach of its decision. This extension was not confined to the specific case but applied uniformly to similar judgments and orders passed by various High Courts across the country. The objective was to establish a consistent and uniform approach to reassessment notices issued post-1-4-2021. Despite the SC’s endeavour to navigate a complex legal terrain, certain aspects of the judgment have given rise to critical questions. The directive to treat unamended notices as show-cause notices introduces uncertainties. Questions about the lapse of the notice and flexibility in the response period remain unanswered. Additionally, the SC’s use of Article 142³⁶ for tax cases and its interpretation of a “bona fide mistake” raise concerns.

The utilisation of the phrases “leeway must be shown” and “bona fide mistake” has sparked considerable debate within the legal community. This judicial pronouncement seemingly deviates from the established principle of a stringent interpretation of taxing statutes, thereby challenging the prevailing legal framework. The invocation of Article 142 in tax cases, considered an extraordinary power, has raised concerns and stands in contrast to well-established legal precedents.

The Supreme Court’s (SC) ruling has a significant impact on reassessment notices issued post-1-4-2021. However, an intricate set of queries emerges concerning the applicability of the limitation period as stipulated under the amended Section 149 of the Act to proceedings regularised by the SC’s decision. The SC’s nuanced adjustment of High Court orders introduces an element of ambiguity, leaving room for diverse interpretations.

In conclusion, the SC’s decision in Ashish Agarwal case³⁷ introduces intricate complexities and uncertainties into the domain of reassessment proceedings. While endeavouring to address the genuine challenges faced by the Revenue, the judgment’s implications and the interpretative approach adopted warrant meticulous examination. The broader repercussions on future assessments, coupled with the delicate equilibrium between the rights of assesses and the claims of the Revenue, necessitate thorough consideration. Further elucidations on the unanswered questions become imperative, calling for a more comprehensive understanding of the far-reaching consequences emanating from this judgment.

Gaps in the Supreme Court judgment

1. The Supreme Court invoked the usage of Article 142 to pass orders and render complete justice. However, a detailed clarification on the specific aspects and limitations of Article 142, especially in the context of tax matters is unclear. There exists rampant ambiguity with respect to invocation of Article 142 in tax matters.

2. The judgment deems reassessment notices as show-cause notices under amended Section 148-A(b). This has not been backed by and explanations or reasoning and thus facilitates to the ambiguous nature. Clarity with respect to these provisions will enhance the purview of the judgment.³⁸

3. The judgment relies on the Allahabad High Court’s position that notifications issued under the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (TOLA) are not applicable to reassessment proceedings initiated after 1-4-2021. A more thorough examination or clarification on the applicability or non-applicability of TOLA notifications to the specific circumstances of this case would strengthen the judgment.

4. While the judgment recognises the amendments introduced by the Finance Act, 2021 a more detailed analysis of the legislative intent behind these changes would benefit the proceedings. Thorough consideration of the legislative intent behind these changes would aid the effectiveness of the judgment and its application.

5. Considering the perspectives that might challenge the interpretation or application of the amended provisions would contribute to a more balanced judgment. Moreover, a more extensive exploration of legal precedents and principles related to the retroactive application of statutory amendments, especially in tax matters would lead to stronger foundation for decisions.

6. While the judgment touches upon the question of limitation periods under amended Section 149, a more detailed discussion on how this limitation period should be applied, especially considering different assessment years and thresholds, would enhance the judgment’s completeness.³⁹

7. The judgment lacks an explicit discussion on the broader implications of the decision on public interest, especially considering the large number of reassessment notices involved. Addressing the potential impact on taxpayers, Revenue Authorities, and the public exchequer would add a broader perspective.

Bombay High Court — New India Assurance Ltd. v. CIT

The Court arrived at its decision based on several key points the primary one being that the Court emphasised that the provisions of the Limitation Act, 1963⁴⁰, do not automatically apply to the provisions of the Income Tax Act, 1961. The respondents’ defence, relying on the Limitation Act, was rejected as it was not raised in previous orders. Secondly, the argument suggesting the exclusion of the Covid period as per Section 3 of the TOLA was dismissed. The Court reiterated that the theory of “travel back in time” had already been rejected in previous cases, and the Covid period should not affect the computation of the limitation period. Thirdly, the Court scrutinised the applicability of specific notifications (Nos. 20 and 38 of 2021) extending time-limits. It concluded that these notifications did not alter the expiration of the limitation under the Act for reopening the assessment for the AY 2013-2014. The Court emphasised the importance of interpreting court judgments correctly. It rejected arguments that Ashish Agarwal case⁴¹ decision allowed notices beyond the statutory time-limit, emphasising the need to balance the rights of both the Revenue and the assessees. In essence, the Court’s reasoning was grounded in a strict interpretation of relevant statutes, a rejection of flawed legal arguments, and a commitment to upholding the balance between the rights of the Revenue and the assessees. The conclusion was that the notice under Section 148 for AY 2013-2014 was issued beyond the permissible time-limit. The Court ultimately concludes that the notice issued for the mentioned assessment year is beyond the statutory time-limit.⁴²

Critical thinking

Exploring the intricacies of income tax reassessment unfolds a tapestry woven with legislative amendments, court decisions, and procedural intricacies. The Finance Act, 2021, brought about substantial changes, notably the introduction of Section 148-A, signalling a new era in reassessment procedures. A closer look reveals a landscape riddled with challenges, leaving taxpayers and authorities in a state of uncertainty. The amendment’s core, particularly the three-year reassessment time-limit and the introduction of financial thresholds, marks a significant shift. The delicate balance between procedural precision and time sensitivity poses challenges for both tax authorities and taxpayers. A structured framework becomes imperative, highlighting the need to uphold taxpayer rights while ensuring stringent reassessment procedures. The legal arena witnessed conflicting judgments across High Courts, creating a conundrum that demanded resolution. The Supreme Court’s role in Ashish Agarwal case⁴³ introduced nuanced elements, prompting questions about its implications and potential precedent-setting. The recent Bombay High Court judgment in New India Assurance Co. Ltd. v. CIT⁴⁴ sheds light on challenges posed by the interplay of statutes, rejection of the Limitation Act’s applicability, and scrutiny of specific notifications. These elements contribute to the evolving saga of income tax reassessment, adding layers of complexity to an already intricate legal landscape.

Recommendations

1. Legislative clarity on Article 142.—The application of Article 142 in tax cases, as witnessed in the Supreme Court’s Ashish Agarwal judgment⁴⁵, demands legislative clarity. This extraordinary power, while useful, should be subject to well-defined guidelines to prevent potential misuse and ensure consistency. Recommendations include a legislative framework specifying the circumstances under which Article 142 can be invoked in income tax reassessment cases. This clarity helps in avoiding arbitrary use of this power and provides a principled approach to its application, contributing to the overall fairness and legitimacy of legal proceedings.

2. Consultation with the stakeholders.—To ensure a well-rounded perspective, it is suggested that the Supreme Court considers engaging in a consultation process with relevant stakeholders. This may include legal experts, tax professionals, and representatives from both the Revenue and assesses. This involves a meticulous examination of legal precedents, consideration of legislative intent, and engaging in consultations to ensure a comprehensive and transparent interpretation.

3. Procedural clarity.—To navigate the complexities arising from the Finance Act, 2021 amendments, a detailed procedural framework is imperative. Guidelines should explicitly delineate the sequence of actions required for reassessment under Section 148-A, minimising ambiguity and reducing the likelihood of procedural errors. Considering the diverse interpretations and legal debates spurred by High Court judgments, a comprehensive procedural roadmap would bring uniformity. This roadmap should encompass the initiation process, service of notices, the opportunity for the assessee to respond, and the mandatory approval requirements. A clear and standardised procedure not only aids tax authorities in conducting reassessments but also safeguards the rights of taxpayers by ensuring a consistent and structured approach.

4. Addressing appealability gaps.—One of the critical lacunae emerging from the Finance Act, 2021, pertains to the ambiguity surrounding the appealability of reassessment orders. Section 246-A does not explicitly address appeals against reassessment orders, leading to a potential jurisdictional vacuum. Recommendations in this regard involve an amendment to Section 246-A, expressly including reassessment orders within its purview. This amendment would offer a legal avenue for both the Revenue and assesses to appeal against reassessment decisions, ensuring a fair and equitable adjudication process.

5. Gauging real world impact.—To gauge the real-world impact of the Finance Act, 2021 amendments, a structured system for monitoring and evaluation should be established. Regular assessments, possibly through an independent body, can track the efficiency, fairness, and practical implications of the reassessment procedures. This recommendation aligns with the diversity of opinions across various High Courts. Monitoring and evaluation provide a data-driven approach to understand the effectiveness of legislative changes and identify areas that may require further refinement. It allows for an adaptive legal environment that responds to practical challenges faced during the implementation of the amended provisions.

6. Collaborative approach.—Given the divergent perspectives evident in High Court judgments, fostering a collaborative approach among the legislature, judiciary, and tax professionals is paramount. Recommendations in this domain include regular consultations, perhaps in the form of a stakeholder forum, to discuss challenges, interpretations, and potential refinements. A collaborative approach ensures that legal amendments are not only theoretically sound but also practically viable. It promotes an ongoing dialogue between stakeholders, leading to dynamic legal frameworks that evolve with changing circumstances. Such collaboration is essential to strike the right balance between legislative mandates, judicial interpretation, and the needs of taxpayers.

Conclusion

These detailed recommendations aim to address the multifaceted challenges posed by the Finance Act, 2021 amendments and subsequent High Court judgments. Crafting a robust framework involves meticulous attention to procedural clarity, appealability, monitoring mechanisms, legislative guidelines, educational initiatives, and collaborative efforts. By adopting these recommendations, the income tax reassessment process can transform into a fair, efficient, and transparent system that instils confidence in both taxpayers and tax authorities.