GOVERNMENT OF INDIA

MINISTRY OF FINANCE

INCOME TAX DEPARTMENT

OFFICE OF THE ASSISTANT

COMMISSIONER OF INCOME TАХ

CIRCLE 13(2)(2), MUMBAI/

___________________________________________________

To,

SKYLINE REALESTATE
DEVELOPERS PRIVATE

LIMITED

403 Maheshwari Building, F. P.

No. 4 of TPS, IV.,

S.V.ROAD SANTACRUZ(WEST)

MUMBAI 400054,Maharashtra

India

PAN: Assessmen Dated: DIN & Order No.

t Year:
AAKCS4195 29/07/2022 ITBA/COM/F/17/2022-
F 2014-15 23/1044268496(1)

Sir/ Madam/ M/s.

Subject: Subsequent proceedings with reference to
section 148A(b) in consequence to Hon'ble SC Order dated
04.05.2022 – Letter

Sub.: NOTICE U/S. 148A(b) OF THE IT ACT, 1961, In the

case of M/s SKYLINE REALESTATE DEVELOPERS PRIVATE LIMITED
[PAN: AAKCS4195F] A.Y. 2014-15

Ref.: Hon'ble Supreme Court order dated 04.05.2022 in the case

of UOI vs. Ashish Agarwal (2022 SCC Online SC 543)

……………………………………

Kindly refer to the notice u/s. 148 of the IT Act, 1961 dated
21/04/2021 issued and served in your case for AY 2014-15.

In this respect, in pursuance to the order of the Hon'ble Supreme

Court dated 04.05.2022 in the case of UOI vs. Ashish Agarwal
(2022 SCC Online SC 543) and CBDT instruction No. 1 of 2022
dated 11.05.2022 and as per the provisions of section 148A(b) of
the Act, kindly find enclosed the copy of the underlying
information leading to issue of the said notice u/s. 148 along with
reasons recorded and administrative approval obtained when
earlier notice u/s 148 was issued.

In accordance with the directions of the Hon'ble Supreme Court,

you are hereby required to furnish your explanations and details
with copies of supporting documentary evidences in support of
your claim, if any, within two weeks from the date of this notice or
on or before 11.06.2022, in order to facilitate the Jurisdictional
Assessing Officer (JAO) to pass an order u/s. 148A(d) of the Act, as
necessary.
RAJGOPAL KRISHNAN PARTHASARATHY

CIRCLE 13(2)(2), MUMBAI/

(In case the document is digitally

signed please refer Digital
Signature at the bottom of the
page)
 OFFICE OF THE
DY. COMMISSIONER OF INCOME-TAX,
CIRCLE-13(2)(2), Mumbai.
571, 5th FLOOR, AAYAKAR BHAVAN,
M.K.ROAD, MUMBAI -400 020.
Tel. No. 022-022-22075297
E-mail:[email protected]

To,

SKYLINE REALESTATE DEVELOPERS PRIVATE LIMITED

403 Maheshwari Building, F. P. No. 4 of TPS,

IV.,S.V.ROAD SANTACRUZ(WEST)

MUMBAI 400054,Maharashtra

PAN: Assessmen Dated: DIN & Order No.

t Year:
AAKCS4195F 29/07/2022 ITBA/COM/F/17/2022-
2014-15 23/1044268496(1)

Notice under section 148 of the Income-tax Act,1961

Sir/Madam/M/s.

1. I have the following information in your case or in the case of

the person in respect of which you are assessable under the
Income Tax Act, 1961 (herein after referred to as "the Act")
for Assessment Year 2014-15:-

-information which requires action in consequence of the

judgment of the Hon'ble Supreme Court in the case Union of
India Vs. Ashish Agarwal, Civil Appeal 3005/2022, dated 4th
May, 2022.
Suggesting that income chargeable to tax has escaped
assessment within the meaning of section 147 of the Act. Order
under sub-section (d) of section 148A of the Act has been
passed in such case vide DIN & Order No: ITBA/COM/F/17/2022-
23/1044268496(1) dated 29.07.2022 and annexed herewith for
reference.

2. I, therefore, propose to assess or reassess such income or

re-compute the loss or the depreciation allowance or any
other allowance or deduction for the Assessment Year 2014-
15 and I, hereby, require you to furnish, within 30 days from
the service of this notice, a return in the prescribed form for
the Assessment Year 2014-15.
3. This notice is being issued after obtaining the prior approval
of the Pr. Chief Commissioner of Income Tax-, Mumbai
accorded on date 28.07.2022 vide Reference No.
No.MUM/Pr.CCIT/Coord/148/U-III/2022-23/7188-7191.

(JOGENDER SINGH)

DCIT-13(2)(2), Mumbai

GOVERNMENT OF INDIA

MINISTRY OF FINANCE

INCOME TAX DEPARTMENT

OFFICE OF THE ASSISTANT

 COMMISSIONER OF INCOME TАХ

CIRCLE 13(2)(2), MUMBAI/

To,

SKYLINE REALESTATE
DEVELOPERS PRIVATE

LIMITED

403 Maheshwari Building, F. P.

No. 4 of TPS, IV.,

S.V.ROAD SANTACRUZ(WEST)

MUMBAI 400054,Maharashtra

India

PAN: Assessmen Dated: DIN & Order No.

t Year:
AAKCS4195 29/07/2022 ITBA/COM/F/17/2022-
F 2014-15 23/1044268496(1)

Sir/ Madam/ M/s.

Subject: Proceedings u/s 148A(d) in consequence to

Hon'ble SC Order dated 04.05.2022 – Order

The assessee Company has filed a return of income for the

A.Y.2014-15 declaring CURRENT YEAR LOSS (-) Rs.101,796/- on
22.11.2014. The case was selected for scrutiny under CASS and
assessment was completed on 09.12.2016 u/s 143(3) by
determining assessed income of Nil under normal provisions.

2. There is information in this case wherein income of the

assessee chargeable to tax has escaped from assessment within
the meaning of u/s.147 of the IT Act, for the assessment year
2014-15. Brief Details of the information received (as mentioned
in reasons recorded) by the Assessing Officer:

"During the F.Y. 2013-14 relevant for A.Y.2014-15 the assessee

company has received an amount of Rs.10,90,21,489 /- from M/s
Shah and Sanghvi Properties Pvt. Ltd and M/s.Trusted Trading Pvt.
Ltd. As the above companies have received funds from the web of
shell companies and the same have been transferred to the
assessee company, the amount of Rs.10,90,21,489/-- is treated as
bogus and should be added to the income of the assessee
company.

The information has been examined and found that the above
observation is correct as there were unsecured loans from the
above companies which have transaction with shell companies,
the above amount should brought to tax."

4. Therefore, the assessment for the year under consideration

was reopened within the meaning of section 147 of the Act.
However, As per Hon'ble Supreme Court judgement vide
order dated 04.05.2022, notices issued to the respective
assesses under unamended Section 148 of the I. T. Act were
construed or treated to be show-cause notices in terms of
Section 148A(b). Hence, assessee was issued fresh notice on
27/05/2022 requesting to furnish the explanation along with
supporting documents/evidences, as to why a notice u/s 148
of the Act should not be issued in his case for the above
mentioned assessment year. Assessee was requested to
submit his reply on or before 11.06.2022. The same was duly
served on the assessee through ITBA Portal.
5. In response to the notice issued the assessee made
submissions on 06/06/2022 the relevant paras and the
comments on the same are reproduced as under.
 The amount of Rs.10,90,21,489/- as duly mentioned in the
subject notice is the closing balance of unsecured loans
received as on 31-03-2014 and is the not the amount of loan
received during the year under consideration i.e. AY 2014-15.

4.1 The assessee reply on this issue is not acceptable as the

assessee submitted copy of ledger account of Trusted Trading
Pvt Ltd. On perusal of the same it is found that the assesse has
received Rs.9,93,33,500/- from Trusted Trading Pvt Ltd which is
a shell company and not Rs.10,90,21,489/- which is reported in
the information. However the assessee has not provided any
documentary evidences such as ledger copy of M/s Shah and
Sanghvi Properties Pvt. Ltd in its books of accounts which
establish that it was opening balance as on 01.04.2013 and out
of that the repayment made during the year and closing
balance as on 31.03.2014 amounting to Rs.10,90,21,489/-
pertains to the aforesaid company. Hence the amount of
Rs.10,90,21,489/- rеceived from M/s Shah and Sanghvi
Properties Pvt. Ltd is nothing but bogus unsecured loan
received from Shell Companies.

4.2 The assessee submitted that the reopening of the

assessment proceedings for the year under consideration is not
correct and on this very account the said reassessment
proceedings needs to be dropped.

4.3 The Assessee contention is not acceptable that the

reassessment is now sought to be made on basis the data
which was already available on record.

4.4 The information of the shell companies was not available to

the AO at the time of the original assessment. It is true that the
assessee has filed a copy of audited P&L account and balance
sheet along with the return of income where various
information /material were disclosed. However, the requisite
full and true disclosure of all material facts necessary for
assessment has not been made as discussed above. It is
pertinent to mention here that even though the assessee has
produced books of accounts, audited P&L A/c and balance
sheet or other evidence as mentioned above, the requisite
material facts as noted above in the reasons for reopening
were embedded in such a manner that material evidence could
not be discovered by the AO and could have discovered with
due diligence, accordingly attracting provisions of explanation
1 of section 147 of the act.

4.5 The subject notice issued is "barred by limitation"

&

"Notice issued does not satisfy the provisions of section 148A

and explanation thereof"

On this issue it is submitted that the assessment for the year

under consideration was reopened within the meaning of
section 147 of the Act. The Hon'ble Supreme Court in Civil
Appeal No. 3005/2022, vide order dated 04/05/2022 had
directed in para 10 of the order as under:

“……………………….

The impugned Section 148 notices issued to the respective

assesses which were issued under un-amended Section 148 of
the I T Act, which were the subject matter of writ petitions
before the various respective High Courts shall be deemed to
have been issued under Section 148A of the IT Act as
substituted by the Finance Act, 2021 and construed or
treated to be show-cause notices in terms of Section
148A(b). The assessing officer shall, within thirty days from
today provide to the respective assesses information and
material relied upon by the Revenue, so that the
assessees can reply to the show-cause notices with two weeks
thereafter; ..."
As per Hon'ble Supreme Court judgement vide order dated
04.05.2022, notices issued to the respective assesses under
unamended Section 148 of the I. T. Act were construed or
treated to be show-cause notices in terms of Section 148A(b).
Hence, assessee was issued fresh notice on 27/05/2022
requesting to furnish the. explanation along with supporting
documents/evidences, as to why a notice u/s 148 of the Act
should not be issued in his case for the above mentioned
assessment year. Hence the re-assessment proceedings are
valid and as per the provisions of the IT Act.

On this issue it is submitted that under Section 148A(d) of the

I.T. Act, the Assessing Officer is required to decide on the basis
of material available on record including reply of the assessee
as to whether or not it is a fit case for issue of notice u/s 148 of
the I.T. Act.

Therefore, whereas the provisions of section 148 are kicked off

for assessment/ re-assessment/ re-computation u/s 147 of the
I.T. Act, the proviso to section 148 provides following conditions
which need to be satisfied simultaneously, otherwise notice u/s
148 cannot be issued:

1. There is information with the AO which suggests that income

chargeable to tax has escaped assessment TAX DEPAR

2. The information should be in the case of the assessee.

3. The information should pertain to the relevant Assessment

Year.

5. Since the assessee has not provided any documentary

evidences of M/s Shah and Sanghvi Properties Pvt. Ltd in its
books of accounts which establish that it was opening balance
as on 01.04.2013 and out of that the repayment made during
the year and closing balance as on 31.03.2014 amounting to
Rs.10,90,21,489/- pertains to the aforesaid company. Hence
 the amount of Rs.10,90,21,489/- received from M/s Shah and
Sanghvi Properties Pvt. Ltd is nothing but bogus unsecured
loan received from Shell Companies.

5.1 Apart from the above on perusal of the ledger copy of

M/s.Trusted Trading Private Limited furnished by the assessee
with its submission it is found that the assessee has received
an amount of Rs.9,93,33,500/- from a the above shell company
(i.e.M/s.Trusted Trading Private Limited).

5.2 In view of the above and after consideration of information

available and reply filed by the assessee I am satisfied that there
is escapement of Income from the above mentioned transactions
of Rs.20,83,54,989/-(Rs.10,90,21,489/- + Rs.9,93,33,500/-) in the
form of funds received being deposited in bank accounts/invested
in properties asset and so the same is also exceed the limit of
Rs.50,00,000/-. Hence, this is a fit case for passing Order
u/s.148A(d) and issue of notice u/s.148 of the Act.

6. The order has been passed with prior approval of Specified

authority u/s.148A(d) & u/s.151 of the IT Act, Principal Chief
Commissioner of Income Tax, Mumbai vide No.MUM/Pr
CCIT/Coord/148/U-|II/2022-23/7188-7191 Dated 28.07.2022.

JOGENDRA SINGH

CIRCLE 13(2)(2), MUMBAI

(In case the document is

digitally signed please refer
Digital Signature at the
bottom of the page)
 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: SURAT

SPECIAL CIVIL APPLICATION NO. OF 2022

Skyline Realestate Developers Private Limited ...... Petitioner

Versus

The Deputy Commissioner of Income Taх,

Circle 13(2)(2), Mumbai ……..Respondent

INDEX

Sr. Annexur Page

No. e Particular No.

1. -- Memo of the Petition. 1-25

 2. A (Colly.) Copy of notice dated 26-
29.07.2022 under section 148 32
and order dated 29.07.2022
under section 148A(d) for the
Assessment Year 2014-15.

3. B (Colly.) Copy of show cause notice 33-

dated 27.05.2022 issued 37
under clause (b) of section
148A of the Act and relevant
material.

4. C (Colly.) Copy of letter dated 38-

04.06.2022 and other relevant 54
documents.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: SURAT

SPECIAL CIVIL APPLICATION NO. OF 2022

Skyline Realestate Developers Private Limited ...... Petitioner

Versus

The Deputy Commissioner of Income Taх,

Circle 13(2)(2), Mumbai …….Respondent

CHRONOLOGY OF DATES AND EVENT

The Petitioner is a Company incorporated under the Companies

Act, 1956 of which majority shareholders are citizens of India. The
Petitioner is, therefore, entitled to the constitutional rights
guaranteed under Articles 14 and 19(1)(g) of the Constitution of
India. The Respondent is a 'State' within the meaning of Article 12
of the Constitution.
Date Events
04.05.2022 At the outset, it is clarified that reopening notice
under section 148 of the Act was issued by the
Department in the case of the petitioner for the year
under consideration during the period between
01:04.2021 to 30.06.2021 after following the
erstwhile procedure prescribed for reopening (i.e.
law applicable till 31.03.2021) despite the fact that
with effect from 01.04.2021, new regime of
reopening provisions had come into force. Hon’ble
the Apex Court, vide judgment dated 04.05.2022 in
the case of "UOI vs. Ashish Agarwal - (2022) 444 ITR
(SC)", adjudicated the issue as to validity of such
reopening notices issued across the nation and gave
certain directions to the Department. Consequent to
the aforesaid decision, reassessment proceedings for
the year under consideration have been initiated.
27.05.2022 The Respondent issued a show cause notice dated
27.05.2022 under clause (b) of section 148A of the
Act whereby the Petitioner was called upon to show
cause as to why notice under section 148 of the Act
should not be issued for the year under
consideration.
04.06.2022 The Petitioner furnished a detailed reply to the
above show cause notice vide letter dated
04.06.2022. In view of submission contained therein,
the Petitioner requested the Respondent to drop the
reassessment proceedings.
29.07.2022 The Respondent, vide order dated 29.07.2022
passed under clause (d) of section 148A of the Act,
concluded that there is escapement of income
chargeable to tax to the tune of Rs.10,90,21,489/-
(i.e. Rs.10,90,21,489/- being unsecured loan
received from SSPPL + Rs.9,93,33,500/- being
unsecured loan received from TTPL) and hence, the
Respondent is of the view that this is a fit case for
issuance of notice under section 148 of the Act.
29.07.2022 The Respondent, thereafter, issued notice dated
29.07.2022 under section 148 of the Act seeking to
 reopen the case of the Petitioner.
-- At this stage, it is clarified that Petitioner was earlier
based in Maharashtra but later, has shifted to Surat,
as is evident from acknowledgment of return of
income of past years and master data as per record
of ROC. Thus, part cause of action has arisen in the
State of Gujarat. Hence, the Petitioner has
challenged the impugned notice before this Hon’ble
Court by way of the present petition. The said fact is
evident from master data as per record of ROC and
acknowledgment of return of income for last year.
-- The Petitioner states that the impugned notice
issued by the respondent under section 148 of the
Act as well as the impugned order passed by the
respondent under clause (d) of section 148A of the
Act in the case of the petitioner for the year under
consideration are patently bad, illegal and contrary
to law. The Petitioner therefore, has no other
alternative but to approach this Hon'ble Court as and
by way of the present petition. HENCE THIS
PETITION.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: SURAT

SPECIAL CIVIL APPLICATION NO. OF 2022

In the matter of Articles 14,

19(1)(g) and 226 of the
Constitution of India

And

In the mater of section 147 of

The Income-Tax, 1961:

And

In the matter between:

Skyline Realestate Developer Private Limited,

Sh. No.6,7,8(F.F.), 6 to 11 (S.F.)

Sheron Plaza, Beside Narmala Apartment,

Parle Point, Athwaliness,

Surat-395007 ……Petitioner

Versus

The Deputy Commissioner of Income Tax,

Circle 13(2)(2), Mumbai,

571, 5th floor,

Aayakar Bhavan, M.K. Road,

Mumbai-400020 ….Petitioner

To,

The Hon’ble Chief Justice and other

Hon’ble Judges of the Hight Court of Gujarat at Ahmedabad.

The Humble petition of the

Petitioner above named;

MOST RESPECTFULLY SHEWETH:

1. The Petitioner, by way of this petition under Art le 226.ot

MEN the Constitution of India, challenges notice dated
29.07.2022 issued under section 148 of the Income Tax Act,
1961 (hereinafter referred to as 'the Act') as well as the
order dated 29.07.2022 рassed under section 148A(d) of the
Act [copy annexed and marked as ANNEXURE "A (Colly.)"]
seeking to re-open income tax assessment of the Petitioner
for Assessment Year 2014-15 (hereinafter referred to as the
"year under consideration"), since the said notice and order
are bad, illegal, contrary to law and without jurisdiction.

2. FACTS:
 2.1 The Petitioner is a Company incorporated under the
Companies Act, 1956 of which majority shareholders are
citizens of India. The Petitioner is, therefore, entitled to the
constitutional rights guaranteed under Articles 14 and 19(1)
{g) of the Constitution of India. The Respondent is a 'State'
within the meaning of Article 12 of the Constitution.
2.2 At the outset, it is clarified that reopening notice under
section 148 of the Act was issued by the Department in the
case of the petitioner for the year under consideration during
the period between 01.04.2021 to 30.06.2021 after following
the erstwhile procedure prescribed for reopening (i.e. law
applicable till 31.03.2021) despite the fact that with effect
from 01.04.2021, new regime of reopening provisions help
come into force. Hon'ble the Apex Court, vide judgment
dated 04.05.2022 in the case of "UOI vs. Ashish Agarwal 444
ITR 1 (SC)", adjudicated the issue as to validity of such
reopening notices issued across the nation and gave certain
directions to the Department. Consequent to the aforesaid
decision, reassessment proceedings for the year under
consideration have been initiated.
2.3 The Respondent issued a show cause notice dated
27.05.2022 under clause (b) of section 148A of the Act
whereby the Petitioner was called upon to show cause as to
why notice under section 148 of the Act should not be issued
for the year under consideration. Contents thereof are
broadly as follows:
 The petitioner filed return of income for the year under
consideration on 22.11.14. The case was selected for scrutiny
and assessment was framed under section 143(3) of the Act
vide order dated 09.12.2016.
 As per the information received by the respondent, the
petitioner had received an amount of Rs.10,90,21,489/- from
M/s. Shah and Sanghvi Properties Private Limited and M/s.
Trusted Trading Private Limited.
 As the above companies had received funds from web of shell
companies and the same have been transferred to the
petitioner, amount of Rs.10,90,21,489/4018017 treated as
bogus and should be added to of the petitioner.
 In view of the above, the respondent is of the opinion that sum
of Rs.10,90,21,489/- under the head of "unsecured loans" is
chargeable to tax in the hands of the petitioner for the year
under consideration..

Copy of show cause notice dated 27.05.2022 issued under clause

(b) of section 148A of the Act and relevant material is annexed
and marked as ANNEXURE “B (Colly.)".

2.4 The Petitioner furnished a detailed reply to the above

show cause notice vide letter. dated 04.06.2022. In view of
submission contained therein, the Petitioner requested the
Respondent to drop the reassessment proceedings. Broadly,
following contentions were raised therein:
 Insofar as transactions with "M/s. Shah and Sanghvi Properties
Private Limited (hereinafter referred to as "SSPPL for the sake
of brevity) are concerned,
 Sum of Rs.10,90,21,489/- mentioned in show cause notice is
"closing balance as on 31.03.14 of "unsecured loans"
received from SSPPL.
 Such sum does not indicate the amount of loan received
during the year under consideration.
 On the contrary, "opening balance of unsecured loan from
the said party was Rs.13:39,04 98 as at 01.04.2013 and
after part repayment such loan during the year under
consideration, "closing balance as at 31.03.2014 was
Rs.10,90,21,489/-.
 Thus, sum mentioned in the show cause notice is merely
"closing balance" of "unsecured loan as on 31.03.2014.
 Thus, the information received by the respondent (based on
which the case has been reopened) is factually incorrect.
 During assessment proceedings, the petitioner had submitted
following details w.r.t. "unsecured loans"
 Confirmation.
 Balance-sheet and Profit and Loss Account.
 Return of income.
 Bank statement.
 After verifying and scrutinizing documentary evidences placed
on record, the then Assessing Officer framed assessment under
section 143(3) of the Act.
 Insofar as transactions with Trusted Trading Private Limited
(hereinafter referred to as "TTPL for the sake of brevity) are
concerned, -
 During the Financial Year 2010-11elevant to Assessment
Year 2011-12),
 Rs. 10,00,00,000/- was received by TTPL from different
companies as share capital.
 Rs. 10,00,00,000/- was advanced by TTPL to M/s. SSPPL as
advances.
 During the Financial Year 2013-14 (relevant to Assessment
Year 2014-15 i.e. year under consideration), -
 Rs.10,00,00,000/- was received back by TTPL from SSPPL
 Out of such sum received by TTPL from SSPPL, loan was
advanced to petitioner:
 From the above, it was evident that the "unsecured loan"
received by the petitioner from TTPL during the year under
consideration was from the sum of Rs. 10,00,00,000/-
received by TTPL from different companies as share capital
in the Financial Year 2010-11 (relevant to Assessment Year
2011-12).
 During reassessment proceedings in the case of TTPL for the
Assessment Year 2011-12,-
 Addition of Rs.10,00,00,000/- was made under section 68
in respect of share capital / share premium received by
TTPL.
  Appeal was preferred by TTPL before the first appellate
authority and the same was decided in favour of the
petitioner.
 Revenue preferred an appeal against such order before
Income Tax Appellate Tribunal.
 TTPL opted that Vivad se Vishwas Scheme (hereinafter after
referred to as "VsV for the sake of brevity) insofar as appeal
for the Assessment Year 2011-12 was concerned and paid
applicable taxes thereon.
 Since TTPL opted for VsV in respect of source of
Rs.10,00,00,000/- (i.e. the sum which was ultimately
transferred to the petitioner), the same stands fully
explained and settled in the hands of the petitioner.
 Once source of Rs. 10,00,00,000/- stands fully explained in
the hands of TTPL owing to declaration under VsV, the same
stands fully explained in the hands of petitioner as well.
Taxing the same amount in the hands of the petitioner will
result into double taxation which has never been intention of
the Legislature.
 Action of reopening in the case of the petitioner is "barred by
limitation".
 There is no "Information" based on which reopening can be
justified.
 There is no escapement of income chargeable to tax
represented in the form of "Asset as defined under section 149
of the Act.

Copy of letter dated 04.06.2022 and other relevant documents is

annexed herewith and marked hereto as ANNEXURE "C (Colly.)".

2.5 The Respondent, vide order dated 29.07.2022 passed

under clause (d) of section 148A of the Act, concluded that
there is escapement of income chargeable to tax to the tune
of Rs.10,90,21,489/- (i.e. Rs.10,90,21,489/- being unsecured
loan received from SSPPL + Rs.9,93,33,500/- being
 unsecured loan received from TTPL) and hence, the
Respondent is of the view that this is a fit case for issuance
of notice under section 148 of the Act.
2.6 The Respondent, thereafter, issued notice dated
29.07.2022 under section 148 of the Act seeking to reopen
the case of the Petitioner for the year under consideration.
2.7 At this stage, it is clarified that Petitioner was earlier
base in Maharashtra but later, has shifted to Surat as is
evidence from acknowledgment of return of income of past
years master data as per record of ROC. Thus, part cause of
action has arisen in the State of Gujarat. Hence, the
Petitioner has challenged the impugned notice before this
Hon’ble Court by way of the present petition. The said fact is
evident from master data as per record of ROC and
acknowledgment of return of income for last year.
2.8 The Petitioner states that the impugned notice issued
by the respondent under section 148 of the Act as well as
the impugned order passed by the respondent under clause
(d) of section 148A of the Act in the case of the petitioner for
the year under consideration are patently bad, illegal and
contrary to law. The Petitioner therefore, has no other
alternative but to approach this Hon'ble Court as and by way
of the present petition. HENCE THIS PETITION.

3. SUBMISSIONS:

3.1 The Petitioner most respectfully submits before this

Hon’ble Court that the impugned notice and impugned order
under clause (d) of section 148A of the Act in the case of the
Petitioner for the year under consideration are patently bad,
illegal, contrary to law and in gross violation of the
 fundamental rights guaranteed to the Petitioner under
Article 14 of the Constitution of India.
3.2 THE IMPUGNED NOTICE IS "BARRED BY LIMITION
3.2.1The Petitioner, at the outset, most respectfully INDI before
this Hon’ble Court that the impugned notice is barred by
limitation. At this stage, the petitioner would like to invite
attention of this Hon'ble Court to the following vital legal
provisions:
1. As per first proviso to sub-section (1) of section
149(1), no notice under section 148 of the Act shall be
issued at any time in a case for the relevant assessment
year beginning on or before 1st day of 2021, if such notice
could not have been issued at that time on account of being
beyond the time limit specified under clause (b) of sub-
section (1) of section 149, as they stood immediately
before the commencement of the Finance Act, 2021.
2. As per clause (b) of sub-section (1) of section 149 of the Act,
as they stood immediately before the commencement of the
Finance Act, 2021, no notice under section 148 of the Act
shall be issued for the relevant assessment year if four
years, but not more than six years, have elapsed from the
end of the relevant assessment year unless the income
chargeable to tax which has escaped assessment amounts
to or is likely to amount to one lakh rupees or more for that
assessment year.
3.2.2The above discussed legal provisions pertaining to
reopening can be summarized as follows:
 Notice under section 148 of the Act can be issued on or after
01.04.2021 only if the limitation for issuing such notice
under old regime of reopening had not expired prior to
Finance Act, 2021 coming into force (Note: At this stage, it is
clarified that the new provisions relating to reopening
introduced by the Finance Act, 2021 came into force with
effect from 01.04.2021);
  As per the old regime of reopening, reopening notice under
section 148 of the Act could have been issued before the
expiry of six years from the end of the relevant assessment
year i.e. no notice could have been issued after the expiry of
the period of six years from the end of the relevant
assessment year.
 If the period of six years from the end of the relevant
assessment year expired on or before 31.03.2021, then
notice under section 148 of the Act could not have been
issued under the new regime for the said assessment year.
3.2.3The following example will help in appreciating the above
referred legal provisions pertaining to reopening under the
new regime:

Particulars Assessment Year Assessment

2013-14 Year 2014-
15
Date of expiry of the 31.03.2014 31.03.2015
Assessment Year
Date of expiry of six years from 31.03.2020 31.03.2021
the end of the Assessment Year
Date of new provisions 01.04.2021 01.04.2022
introduced by Finance Act,
2021 coming into force
Whether limitation for issuing Yes Yes
notice under section 148
preşcribed under old regime of
reopening expired?
Whether notice under section No No
148 of the Act can be issued
under new regime in view of
first proviso to sub-section (1)
of section 149 of the Act ?

Above example throws sufficient light on new and old provisions

of reopening insofar as limitation is concerned.
3.2.4In the present case, reopening notice issued earlier under
section 148 of the Act (i.e. between 01.04.21 to 30.06.21)
is clearly barred by limitation in view of above discussed
legal provisions as well as the above discussed example,
On this short count, the impugned order deserve to be
quashed.
3.3 THERE IS "NO INCOME CHARGEABLE TO TAX
REPRESENTED IN THE FORM OF "ASSET" WHICH HAS
ESCAPED ASSESSMENT:
3.3.1 The Petitioner submits that reopening is not justified
since there is "no income chargeable to tax represented in
the form of "asset which has escaped assessment. At this
stage, the petitioner would like to invite attention of this
Hon'ble Court to the following vital provisions:
 As per clause (a) of sub-section (1) of section 149, no
notice under section 148 shall be issued for the relevant
assessment year if three years have elapsed from the end of
the relevant assessment year unless the case falls under
clause (b).
 As per clause (b) of sub-section (1) of section 149, no
notice under section 148 shall be issued 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 accounts or other
documents or evidence which reveal that the income
chargeable to tax, represented in the form of "asset".
which has escaped assessment amounts to or is likely
to amount to "fifty lakh rupees or more" for that year.
 As per Explanation to sub-section (1) of section 149, for
the purposes of clause (b) of sub-section (1) of section 149
“asset" shall include immovable property, being land or
building or both, shares and securities, loans and advances,
deposits in bank account
 3.3.2 The above discussed legal provisions pertaining to
reopening can be summarized as follows:
 If three years from the end of the relevant assessment year
have not expired, reopening notice can be issued whenever
there is escapement of income chargeable to tax for the
year in question;
 If three years from the end of the relevant assessment year
have expired, then reopening notice can be issued in case
there is escapement of income chargeable to tax subject to
fulfillment of following conditions:
 Assessing Officer has in his possession books of accounts or
other documents or evidence which reveal that the income
chargeable to tax, represented in the form of "asset";
and

* Income which has escaped assessment amounts to or is likely

to amount to "fifty lakh rupees or more" for that year;

Note; For the purposes of clause (b) of sub section of section 149
of the Act “asset” shall immovable of section 149 of the Act
"asset" shall immovable property, being land or building or both
shares and securities, loans and advances, deposits in bank
account.

3.3.3In the present case;

 The impugned notice has been issued by the respondent
after the expiry of three years from the end of the relevant
assessment year.
 There is "no income chargeable to tax" represented in the
form of "asset" which has escaped assessment.
 The case has been reopened on the count that certain
"unsecured loans" taken by the Petitioner are bogus.
 By no stretch of imagination, the issue in question would fall
within the ambit of "asset";
 Thus, requirement of clause (b) of sub-section (1) of section
149 of the Act have not been satisfied.
In view of the above, action of reopening the case of the
petitioner for the year under consideration is not justified in the
eye of law. Hence, the impugned notice and the impugned order
must be quashed by this Hon’ble Court in the larger interest of
justice.

3.4 THERE IS NO "INFORMATION", AS PRESCRIBES

UNDER THE ACT, WHICH SUGGESTS THAT ANY INCOME
CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT
3.4.1The Petitioner further submits that there is no
"information", as prescribed under the Act, which
suggests that any income chargeable to tax has escaped
assessment. At this stage, the Petitioner would like to
invite attention of this Hon'ble Court to the following vital
provisions in relation to information" prescribed under the
Act which is mandatory for issuing notice under section
148 of the Act. Such legal provisions are as follows:
 As per first proviso to section 148 of the Act, no notice
under section 148 of the Act shall be issued unless there is
"information" with the Assessing Officer which suggests that
income chargeable to tax has escaped assessment in the
case of the assessee for the relevant assessment year and
the Assessing Officer has obtained prior approval of the
specified authority to issue such notice;
 Explanation 1 to section 148 of the Act defines the term
"information" for the purposes of section 148 and section
148A of the Act which suggests that the income chargeable
to tax has escaped assessment.
 At this stage, it is clarified that scope of the term
"information" has been widened w.e.f. 01.04.2022;
3.4.2The above discussed legal provisions pertaining to
reopening can be summarized as follows:
 Notice under section 148 of the Act cannot be issued unless
there is "information" which suggests that the income
 chargeable to tax has escaped assessment in the hands of
the assessee concerned;
 Such information should fall within the ambit of meaning
prescribed to the term "information" under the Act itself;
3.4.3Any other information (i.e. information not falling within
the ambit of the meaning prescribed under the Act)
cannot be the basis for issuing notice under section 148 of
the Act; In the present case, the Respondent herein did
not have "information", as prescribed in the scheme of the
Act, suggesting that any income chargeable to tax has
escaped assessment in the hands of the petitioner, as is
evident from the following vital aspects emanating from
record:
 The Respondent has not stated as to how the precondition
as to want of "information" has been satisfied so as to
assume jurisdiction under section 147;
 In fact, while issuing the impugned notice under section 148
of the Act; the Respondent has stated that the case has
been reopened on the basis of imformation which requires
action in consequence of the judgment of Hon’ble Apex
Court in the case of UOI vs. Agarwal supra.

Thus, in absence of "information" suggesting escapement of

income chargeable to tax, the Respondent could not have issued
the impugned notice. Even on that score, reopening is not
justified in the eye of law.

3.5 REOPENING IS MERELY BASED ON 'CHANGE OF

OPINION
3.5.1The Petitioner further submits that the Respondent has
acted illegally and without jurisdiction in issuing notice
under section 148 of the Act. Notice can be issued under
section 148 of the Act if and only if there is "escapement
of income chargeable to tax". It is well settled that such
conclusion must be of an honest and reasonable person
 based upon reasonable ground, not a mere change of
opinion, suspicion, gossip or rumour. Also there must be
live link or close nexus between the material before
assessing officer and the belief he has formed regarding
escapement of income. Such belief must necessarily lead
to a conclusion that some income chargeable to tax has
escaped assessment in the hands of the assessee
concerned.
3.5.2The Petitioner further submits that the case was selected
for scrutiny and the issue on hand was threadbare
examined at original assessment stage by the then
Assessing Officer. In view of the above, it is amply clear
that reopening is a.20705 based on change of opinion.
Such an act is not permissible in the eye of law.
3.5.3It is well settled that an Assessing Officer cannot take any
action under section 147 of the Act, merely because he
happens to change his opinion or to hold an opinion
different from that of his predecessor on the same set of
facts. Having formed an opinion at the original
assessment stage, it is not open to now, change that
opinion and take a different stand based on the very same
set of facts and information. Under the circumstances,
reassessment is totally unwarranted, invalid, bad and
illegal in the eyes of law. This is a mere change of opinion
and time and again various High Courts have taken a view
that mere change of opinion is not sufficient to reopen
completed assessment.
3.6 "SANCTION" OF THE COMPETENT AUTHORITY HAS
NOT BEEN OBTAINED IN THE CORRECT PERSPECTIVE:

The petitioner further submits that the new regime of reopening,

applicable with effect from 01.04.2021, makes it mandatory for
the authorities to take approval of the competent authorities
prescribed under the Act prior to initiating reopening proceedings.
Such an approval has to be granted after considering the "entire
material on record and "after due application of mind". Granting
such an approval is not merely an empty formality. Rather, the
same is an integral and vital part of the new regime of reopening
endorsement of the view taken by the concerned Assessing
Officer would not meet the requirement of the Act. In the present
case, sanction has not been obtained by the Respondent in
accordance with the scheme of the Act. Rather, sanction has been
obtained merely in a mechanical manner which is not permissible
in the eye of law. Under such circumstances, action of reopening
is not justified in the eye of law.

3.7 THE "JURISDICTIONAL ASSESSING OFFICER* DOES

NOT HAVE POWER TO ISSUE "NOTICE UNDER SECTION
148 OF THE ACT SINCE SUCH NOTICE HAS TO BE
ISSUED BY "NATIONAL FACELESS ASSESSMENT
CENTRE" ONLY:

The Petitioner further submits that the Central Board of Direct

Taxes (hereinafter referred to as "CBDT" for the sake of brevity)
has issued Notification No.18/2022 dated 29.03.22 which
prescribes scheme for reassessment. As per clause (b) of section
3 of the said notification, issuance of notice under section 148 of
the Act shall be through automated allocation, in accordance with
risk management strategy formulated by the Board as referred to
in section 148 of the Act for issuance of notice, and in a faceless
manner, to the extent provided in section 144B of the Act with
reference to making assessment or reassessment of total income
or loss of assessee. Thus, notice under section 148 of the Act has
to be issued by the "National Faceless Assessment centre only.
Such notice cannot be issued by jurisdictional Assessing Officer in
the present case, the impugned notice under section 148 of the
Act has been issued by the "jurisdictional Assessing who did not
have jurisdiction to issue such notice. On this count, the
impugned notice deserves to be quashed.
 3.8 The Petitioner, at this stage, would like to invite
attention of this Hon'ble Court to Article 226 of The
Constitution of India, 1950 and the same reads as
follows.

XXX...

226. Power of HighCourts to issue certain writs.- (1)

Notwithstanding anything in article 32, every High Court shall
have powers, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders

or writs to any Government, authority or person may also be
exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the
seat of such Government or authority or the residence of such
person is not within those territories.

XXX...

In view of the above, following vital aspects may be appreciated:

 A bare perusal of Article 226(2) would reveal that where "cause

of action", wholly or in part, has arisen within the territories in
relation to which a High Court exercises jurisdiction, then
powers concerned under clause (1) of Article 226 to issue
directions , of writs to any Government, authority or person
may also be exercised by such High Court notwithstanding that
the seat of such Government or authority or the residence of
such person is not within those territories.
 In the present case, part "cause of action" has arisen within
the territories of this Hon’ble Court (i.e. Surat) since the
Petitioner is a resident of "Surat Le. a city which falls within the
territorial jurisdiction of this Hon'ble High Court. Hence, in view
of Article 226(2), this Hon’ble Court can exercise powers
conferred under clause (1) of Article 226 so as to direct the
"Respondent" even though the said authority does not fall
within the territories of this Hon’ble Court;

In view of the above, the impugned notice issued by the

Respondent deserves to be quashed.

3.9 The Petitioner

further seeks liberty to refer to rely upon various factual as
well as legal submissions forming part of reply furnished in
response to show cause notice issued by the Respondent
under clause (b) of section 148A of the Act. In view of the
same, reopening is not justified.
3.10 The Petitioner
submits that the impugned notice issued in the case of the
Petitioner for the year under consideration and so also the
impugned order passed in the case of the Petitioner for the
year under consideration are even otherwise bad, illegal,
contrary to law and are, according required to be
appropriately quashed by this Hon’ble Court in the larger
interest of justice.
4. The Petitioner has no other alternative equally efficacious
remedy at law but to approach this Hon’ble Court by way of
this petition.
5. The Petitioner has not filed any application or appeal before
any court of law in India in subject matter of the present
petition.
6. The Petitioner submits that pending the hearing and final
disposal of this petition, this Hon’ble Court be pleased to
quash the impugned notice and the impugned order at
 ANNEXURE "A (Colly.)" forthwith, as the Petitioner has
suffered grave hardships which cannot be compensated in
terms of money. The Petitioner has more than a prima facie
case and balance of convenience is also in favor of the
Petitioner.
7. The Petitioner, therefore, prays that this Hon'ble Court be
pleased to issue a writ of mandamus or a writ in the nature
of mandamus or a writ of certiorari or a writ in the nature of
certiorari or any other appropriate writ, direction or order
and be pleased to:
(a) quash and set aside the impugned notice as well as the
impugned order at ANNEXURE “A(Colly)” this petition;
(b) pending the admission, hearing and final disposal of this
petition, stay the implementation and operation of the
impugned notice as well as impugned order at ANNEXURE
"A (Colly.)" to this petition and stay further proceedings
for Assessment Year 2014-15;
(c) any other and further relief deemed just and proper be
granted in the interest of justice;
(d) provide for the cost of this petition.

Ahmedabad: Vaibhavi K. Parikh

Dated:_____ Advocate for the Petitioner

AFFIDAVIT

I,__________________________________________________________ .

Director of the Petitioner herein, do hereby solemnly affirm and

state as under:

That what is stated in paragraphs 1, 2 and 5 are statements of

facts true to my knowledge, what is stated in Paragraphs 3, 4 and
6 are legal submissions and Paragraph No.7 is the prayer clause.
That the annexures are true copies of the original. That I have not
suppressed any material facts.

Solemnly affirmed at______________________on the

_______________day of _____________ , 2022.

__________DIRECTOR

Deponent