Calcutta High Court (Appellete Side)
Manoj Kumar Bagree vs Income Tax Officer on 23 June, 2025
23.06.2025
Item No
A 50
Saswata
WPA 3723 of 2025
Manoj Kumar Bagree
Versus
Income Tax Officer, Ward-30(1), Kolkata & Ors.
Ms. Sutapa Roychowdhury, Sr. Adv.
Mr. Abhijit Das
Ms. Aratrika Roy
Mr. Anirban Chatterjee
...For the petitioner
Mr. Prithu Dudharia
...For the respondents
1. Challenging the order passed under Section 147 read
with Section 144 and 144B of the Income Tax Act, 1961
(hereinafter referred to as the “said Act”) dated 16 th January
2025 for the assessment year 2019-20, the instant writ
petition has been filed.
2. At the very outset, Ms. Roychowdhury, learned
Senior Advocate appearing for the petitioner would submit
that though the writ petition seeks to raise a jurisdictional
issue on the ground that the notice under Section 148 of
the said Act being issued by the jurisdictional assessing
officer is bad, however, the petitioner has participated in
the said proceeding and an assessment order has been
passed thereon. The aforesaid participation should not be
construed as the petitioner submitting to the jurisdiction or
the authority of the assessing officer to issue a notice under
Section 148 of the said Act, subsequent to the Scheme
being notified under Section 151A of the said Act.
3. This apart, she submits that the order passed under
Section 148A(d) of the said Act for the relevant assessment
year is beyond the statutory period and is barred by
limitation. The proceeding thus, should fail.
4. Mr. Dhudoria, learned advocate appearing for the
respondents at the very outset submits that the instant writ
petition has been filed as and by way of an afterthought.
Admittedly, the petitioner has participated in the said
proceeding without raising the above issues. Today, after
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the re-assessment order has been passed, though such
order is an appellable order, the instant writ petition has
been filed to somehow bypass the statutory remedy.
According to him, this Court ought not to entertain this writ
petition having regard to the alternative remedy provided
for in the Scheme of the said Act.
5. Having heard the learned advocates appearing for
the respective parties, though I am not inclined to entertain
the writ petition on the ground that the notice under
Section 148 of the said Act has been issued by the
jurisdictional assessing officer at this belated stage,
however, since an issue of limitation has been raised, I am
inclined to examine the same.
6. It would transpire from the records that a notice
under Section 148A(b) of the said Act dated 2 nd March 2023
had been issued for the assessment year 2019-20 providing
therein that the response to the same shall be filed on or
before the 13th March 2023. Admittedly, time to file
response had been extended till 27 th March 2023 and as
such, having regard to the submissions made by Ms.
Roychowdhury with regard to the forth proviso of Section
149(1) of said Act (substituted by Finance Act 2021 w.e.f.
01.04.2021) since the order under Section 148A(d) was not
passed within a period of 7 days from the extended period,
the order is barred by limitation. To appropriately
appreciate the scope and effect of third and fourth proviso
of Section 149(1) of the said Act as amended by the Finance
Act 2021 for the purpose of excluding the period of
limitation in issuance of a notice under Section 148 or for
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an order under Section 148A(d) of the said Act, as the case
may be, as provided for in Section 149(1) of the said Act,
the relevant section being Section 149(1) of the said Act
along with its proviso is extracted hereinbelow:-
“[149. Time limit for notice
(1) No notice under Section 148 shall be issued
for the relevant assessment year.–
(a) If three years have elapsed from the end of the
relevant assessment year, unless the case falls
under clause (b);
(b) If three years, but not more than ten years,
have elapsed from the end of the relevant
assessment year unless the Assessing Officer has
in his possession books of account or other
documents or evidence which reveal that the
income chargeable to tax, represented in the
form of –
i. asset;
ii. Expenditure in respect of a transaction or in
relation to an event or occasion; or
iii. An An entry or entries in the books of account,
Which has escaped assessment amounts to or is
likely to amount to fifty lakh rupees or more:]Provided that no notice under Section 148
shall be issued at the time in a case for the
relevant assessment year beginning on or before
1st day of April, 2021, if [ a notice under Section
148 or Section 153A or Section 153C could not
have been issued at that time on account of
being beyond the time limit specified under the
provisions of clause (b) of Sub-Section (1) of this
section or section 153A or Section 153C, as the
case may be], as they stood immediately before
the commencement of the Finance Act, 2021:
Provided further that the provisions of this
sub-section shall not apply in a case, where a
notice under section 153A, or section 153C read
with section 153A, is required to be issued in
relation to a search initiated under section 132
or books of account, other documents or any
assets requisitioned under section 132A, on or
before the 31st day of March, 2021:
Provided also that for the purposes of
computing the period of limitation as per this
section, the time or extended time allowed to the
assessee, as per show-cause notice issued under
clause (b) of section 148A or the period during
which the proceeding under section 148A is
stayed by an order or injunction of any court,
shall be excluded:
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Provided also that where immediately after the
exclusion of the period referred to in the
immediately preceding proviso, the period of
limitation available to the Assessing Officer for
passing an order under clause (d) of section 148A
is less than seven days, such remaining period
shall be extended to seven days and the period of
limitation under this sub-section shall be
deemed to be extended accordingly.”
7. As would appear from the above primarily, upon
issuance of a notice under Section 148A(b) of the said Act,
while computing the period of limitation, the time or the
extended time allowed to the assessee as per the show
cause notice issued under Section 148A(b) of the said Act is
excluded, in addition to the period during which the
proceeding under Section 148A remains stayed by order or
injunction of any Court. In addition to the above, having
regard to the forth proviso, if after excluding the period
provided for in the third proviso it transpires that the period
of limitation available to the assessing officer for passing
the order under clause (d) of Section 148A is less than 7
days, such remaining period shall stand extended to a
further period of 7 days and the period of limitation under
the sub-Section shall be deemed to be extended
accordingly.
8. Admittedly, in this case, in terms of the notice issued
under Section 148A(b) of the said Act the original period
for filing the response was till 13 th March 2023 which stood
extended till 27th March 2023. Having regard to the third
proviso contained in Section 149(1) of the said Act the
assessing officer is entitled to the exclusion of the time
provided for seeking response including the extended time
therefor. Having regard thereto, in my view, the assessing
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officer was entitled to exclusion of 25 days. Admittedly, the
order impugned has been passed on 6 th April 2023 and as
such, there was no application of the fourth proviso at all.
9. In view thereof, the contention raised by Ms.
Roychowdhury that the order passed under Section 148A(d)
of the said Act is beyond the period of limitation, cannot be
sustained. Since, the petitioner otherwise has an alternative
remedy to challenge the order passed under Section 147
read with Section 144 and Section 144B of the said Act, I
am of the view that the petitioner shall be at liberty to
pursue his remedy before the statutory authority.
10. The above observations and findings are also in tune
with an unreported judgment delivered by a Coordinate
Bench of this Court in the case of Giriraj Commercial
Private Limited versus Union of India and others (WPO
1122 of 2023) though the same pertains to the substituted
provisions of Section 149(1) of the said Act as substituted
11. This apart having regard to the fact that the instant
writ petition was pending before this Court for sometime
and since substantial questions in the form of limitation
had been raised, I am of the view that the petitioner should
be given an opportunity to pursue its statutory remedy.
12. Thus, in the event, the petitioner files an appeal
within a period of 4 weeks from the date of receipt of the
downloaded copy of this order from the official website of
this Court, upon compliance of all formalities by the
petitioner, the appellate authority shall hear out and
dispose of the appeal on merit.
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13. With the above observation and direction, the writ
petition is disposed of.
14. All parties shall act on the basis of the server copy of
this order duly downloaded from this Court’s official
website.
(Raja Basu Chowdhury, J.)