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VALIDITY OF RE-ASSESSMENT notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21 – Dr. Vinod K. Singhania

Leader – Taxmann’s Research and Advisory (Direct Taxation)

VALIDITY OF RE-ASSESSMENT notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21 – Dr. Vinod K. Singhania

Leader – Taxmann’s Research and Advisory (Direct Taxation)

Contents 1. Background

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2. Extension in due dates

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3. Matter of Dispute

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4. CBDT’s Instruction

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5. Case Studies

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1. Background The Finance Act 2021 had substituted sections 147 to 151 with effect from April 1, 2021. Until March 31, 2021, the notice under section 148 for income escaping assessments could be issued within 4 years from the end of the relevant assessment year if the amount of income that has escaped assessment is less than Rs. 1 lakh. Where, however, it exceeds Rs. 1 lakh, the notice could be issued within 6 years from the end of the relevant assessment year.

Under the new provisions applicable from April 1, 2021, the re-assessment notice can be issued within 3 years from the end of the relevant assessment year. If, however, the amount of escaped income exceeds Rs. 50 lakh, the notice can be issued within 10 years from the end of the relevant assessment year.

2. Extension in due dates Due tothe COVID-19 pandemic in 2020 and 2021 and consequent nationwide lockdown, the Government had extended the due dates of various compliances on multiple occasions. The limitation period to issue the notice under the old provision was also extended. The chronology of these limitation periods is mentioned in the below table –

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

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Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

Due dates falling between March 20, 2020 and –

Extended to

Source

June 29, 2020

June 29, 2020

Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [TOLA]†

December 31, 2020

March 31, 2021

Notification S.O. 2033(E) [No. 35/2020], dated June 24, 2020†

March 30, 2021

March 31, 2021

Notification S.O. 4805(E) [No. 93/2020], dated December 31, 2020

March 31, 2021

April 30, 2021

Notification S.O. 1432(E) [No. 20/2021], dated March 31, 2021

March 31, 2021

June 30, 2021

Notification S.O. 1703 (E) [No. 38/2021], dated April 27, 2021

The impact of the Ordinance and notification was covered in the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020. †

3. Matter of Dispute As mentioned above, the Assessing Officers were allowed an extended period to issue a notice under section 148 till June 30, 2021. The additional time was allowed if the original due date for sending such notices fell between March 20, 2020 to March 31, 2021.

A dispute arose between the taxpayers and the revenue on the validity of the notices issued under the old provision between April 1, 2021 and June 30, 2021. During such period, the new provisions (section 147 to section 151) came into force, which explicitly stated that any notice under section 148 on or after April 1, 2021 shall be issued as per the new provisions only.

In many cases, the assessee challenged the validity of notices issued on or after April 1, 2021 under old provisions on the ground that the said provisions

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

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Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

were not existent and substituted by the new provisions with effect from April 1, 2021. Thus, the notices should have been issued in compliance with the new provisions and timelines provided therein.

The Supreme Court ultimately settled the controversy in the case of Union of India v. Ashish Agarwal [2022] 138 taxmann.com 64 (SC). The Court provided relief to both the parties. The revenue got relief as the re-assessment notice issued under the old provision during the said period was held valid on the grounds that the Assessing Officer was under a bona fide belief that the old provisions also got an extension by TOLA and notifications issued thereunder.

The assessee got the relief as the Court held that all the defences available under section 149 shall continue to be available to the assessee.

4. CBDT’s Instruction Considering the decision of the Supreme Court, the CBDT has issued Instruction No. 01/2022, dated May 11, 2022, to deal with re-assessment notices issued under the old provision between April 1, 2021 and June 30, 2021.

With the combined reading of the Supreme Court’s Judgmentand the CBDT’s instruction, it can be submitted that the notice issued between April 1, 2021 and June 30, 2021 shall be deemed to be valid only if the following two conditions are satisfied: (a) The notice is issued within the limitation period prescribed under new Section 149 as follows:

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

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Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21



within 3 years, if the income escaping assessment is less than Rs. 50 lakhs;



within 10 years, if the income escaping assessment is Rs. 50 lakhs or more.

(b) The limitation period should not have expired under old Section 149 as on April 1, 2021.

5. Case Studies The following case studies have been formulated to examine the impact of the aforesaid Supreme Court ruling (and CBDT’s instruction) on the validity of re-assessment notices for different assessment years.

On June 21, 2021, X Ltd., a manufacturing company, gets a re-assessment notice from the Assessing Officer to reopen the assessment for different assessment years. This notice, after the aforesaid Supreme Court’s ruling, will be deemed as show-cause notice under Section 148A. The concerned Assessing Officer within 4 weeks from the date of judgment of the Supreme Court (say, on June 1, 2022) hands over the relevant material to X Ltd. on the basis of which the Assessing Officer has formulated a view that there is an income escapement in this case. X Ltd. by its reply to the show-cause notice on May 15, 2022 intimates to the Assessing Officer (along with documentary evidence) that there is no escapement of income in its case. However, the Assessing Officer rejects the objection raised by the assessee and issues a fresh Section 148 notice to X Ltd. to reopen assessment for different assessment years. This notice is issued along with the order under Section 148A(d) on June 30, 2022.

In the paras given below, an attempt has been made to examine whether the notice dated June 30, 2022 is within the time-limit given under Section 149.

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

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Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

By virtue of the third proviso of Section 149(1), the time allowed to the assessee (as per show-cause notice under section 148A) shall be excluded to determine the time-limit under Section 149(1). In this case, (deemed) Section 148A show-cause notice was issued on June 21, 2021. The Assessing Officer has issued notice under Section 148 on June 30, 2022. The period from June 21, 2021 to June 30, 2022 may be excluded to find out whether (or not) the notice dated June 30, 2022 is within the statutory time-limit narrated by Section 149. Consequently, the new notice issued on June 30, 2022 may be effectively taken as issued on June 21, 2021.

Category 1 - If income escaping assesment is less than Rs. 1 lakh Different cases

Assessment Year

Last date to issue notice (after considering the extension given by TOLA) Under old law

Under new law

Whether notice could be issued in the extended period under the old law?

Whether notice could be issued under the new law?

Validity of notice

Case 1

2012-13

March 31, 2017

March 31, 2016

No

No

Time barred

Case 2

2013-14

March 31, 2018

March 31, 2017

No

No

Time barred

Case 3

2014-15

March 31, 2019

March 31, 2018

No

No

Time barred

Case 4

2015-16

June 30, 2021

March 31, 2019

Yes

No

Time barred

Case 5

2016-17

June 30, 2021

June 30, 2021

Yes

Yes

Valid

Case 6

2017-18

March 31, 2022

June 30, 2021

Yes

Yes

Valid

Case 7

2018-19

March 31, 2023

March 31, 2022

Yes

Yes

Case 8

2019-20

March 31, 2024

March 31, 2023

Yes

Yes

Case 9

2020-21

March 31, 2025

March 31, 2024

Yes

Yes

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

Valid Valid Valid

13

14

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

Cases 1, 2, 3 and 4 - In these cases, notices cannot be issued on June 21, 2021 under the new law. Consequently, these notices are time barred.

Cases 5, 6, 7, 8 and 9 - In these cases, notices can be issued on June 21, 2021 under the new law as well as under the old law. Therefore, these notices are valid and not time barred.

Category 2 - Income escaping assessment is Rs. 1 lakh or more but less than Rs. 50 lakhs Different cases

Assessment Year

Last date to issue notice (after considering the extension given by TOLA) Under old law

Under new law

Whether notice could be issued in the extended period under the old law?

Whether notice could be issued under the new law?

Validity of notice

Case 10

2012-13

March 31, 2019

March 31, 2016

No

No

Time barred

Case 11

2013-14

June 30, 2021

March 31, 2017

Yes

No

Time barred

Case 12

2014-15

June 30, 2021

March 31, 2018

Yes

No

Time barred

Case 13

2015-16

March 31, 2022

March 31, 2019

Yes

No

Time barred

Case 14

2016-17

March 31, 2023

June 30, 2021

Yes

Yes

Valid

Case 15

2017-18

March 31, 2024

June 30, 2021

Yes

Yes

Valid

Case 16

2018-19

March 31, 2025

March 31, 2022

Yes

Yes

Case 17

2019-20

March 31, 2026

March 31, 2023

Yes

Yes

Case 18

2020-21

March 31, 2027

March 31, 2024

Yes

Yes

Valid Valid Valid

Cases 10, 11, 12 and 13 - In these cases, notices cannot be issued on June 21, 2021 under the new law. Consequently, these notices are time barred.

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

15

16

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

Cases 14, 15, 16, 17 and 18 - In these cases, notices can be issued on June 21, 2021 under the new law as well as under the old law. Therefore, these notices are valid and not time barred.

Category 3 - Income escaping assessment is Rs. 50 lakh or more Different cases

Assessment Year

Last date to issue notice (after considering the extension given by TOLA) Under old law

Under new law

Whether notice could be issued in the extended period under the old law?

Whether notice could be issued under the new law?

Validity of notice

Time barred

Case 19

2012-13

March 31, 2019

March 31, 2023

No

Yes

Case 20

2013-14

June 30, 2021

March 31, 2024

Yes

Yes

Case 21

2014-15

June 30, 2021

March 31, 2025

Yes

Yes

Case 22

2015-16

March 31, 2022

March 31, 2026

Yes

Yes

Case 23

2016-17

March 31, 2023

March 31, 2027

Yes

Yes

Case 24

2017-18

March 31, 2024

March 31, 2028

Yes

Yes

Case 25

2018-19

March 31, 2025

March 31, 2029

Yes

Yes

Case 26

2019-20

March 31, 2026

March 31, 2030

Yes

Yes

Case 27

2020-21

March 31, 2027

March 31, 2031

Yes

Yes

Valid Valid Valid Valid Valid Valid Valid Valid

Case 19 - In Case 19, notice cannot be issued on June 21, 2021 under the old provision. Consequenty, it is time barred.

Cases 20, 21, 22, 23, 24, 25, 26 and 27 - In these cases, notices can be issued on June 21, 2021 under the new law as well as under the old law. Therefore, these notices are valid and not time barred.

(The due dates in case of re-assessment pursuant to search proceedings have not been covered in this article) Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

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Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

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Validity of re-assessment notices issued during notices issued during April 1, 2021 and June 30, 2021 for the AY 2012-13 to 2020-21

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