Hexaware BHC Notes of Kapil Goel Adv 03 May 2024

NOTES OF KAPIL GOEL & SANDEEP GOEL ADV
(99170272804) [email protected]
ON LANDMARK/EPOCHAL DECISION OF HON’BLE BOMBAY HIGH COURT IN

CASE OF Hexaware Technologies Limited, VS ACIT 2024:BHC-OS:7104-DB ORDER
DATED 03RD MAY 2024
HOST OF WIDELY IMPACTING PROPOSITIONS ON SEC 148/REOPENING LAID

DOWN IMPACTING THOUSANDS OF NOTICES U/S 148 ACROSS COUNTRY
REJECTING REVENUE’S STAND ON ALMOST ALL ISSUES
==============================================================
NOTABLE PROPOSITIONS
1) TIME LIMTATION ASPECT U/S 149(1) FIRST PROVISO AY 2015-2016 HELD

TIME BARRED ON 31.03.2022: “Section 149(1)(b) of the erstwhile provisions
provided a time limit of six years from the end of the relevant assessment year for issuing
notice under Section 148 of the Act. For the relevant assessment year, being Assessment
Year 2015-2016, 6th year expired on 31st March 2022. The notice under Section 148 of
the Act, in the present case, is issued on 27th August 2022, i.e., clearly beyond the period
of limitation prescribed in
Section 149 read with the first proviso to the said section.” ALSO HELD “Hence, if a
notice is not within the time prescribed under the first proviso to Section 149(1) of the
Act, then such period cannot be extended by fifth proviso and sixth proviso.” “In view
of the aforesaid, the impugned notice dated 27th August 2022 is clearly barred by the
law of limitation.”
2) VIOLATION OF CBDT “DIN”CIRULAR 19/2019 : HELD NOTICE U/S 148 IS
IN VIOLATION OF SAME AND TO BE QUASHED IN TOTO: “admittedly there
is no DIN mentioned IN notice u/s 148” It is petitioner’s case that the notice is invalid
and bad in law in view of the Circular No.19 of 2019 dated 14th August 2019 issued by
CBDT. A separate intimation letter also dated 27th August 2022 was issued. “ We agree
1|Page KAPI L G OEL A DV 9910272804 adv oca teka pilgoel @gmail. com
N O T E S O N B H C “ H E X AWA R E ” S EC 1 4 8 L A N D M A R K R U L I N G O F 0 3 R D M AY
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with petitioner that this letter cannot validate the notice issued under Section 148 of the
Act on 27th August 2022” “Therefore, as held in Ashok Commercial Enterprises (Supra)
and Tata Medical Center Trust (Supra), the impugned notice is clearly invalid and bad
in law” “ Therefore, the impugned notice dated 27th August 2022 issued under Section
148 of the Act is invalid and bad in law as the same has been issued without a DIN.”
3) NOTABLY ALL REVENUE ARGUMENTS ON SEC 151A FACELESS MODE
REJECTED AND HELD IMPUGNED NOTICE U/S 148 IS IN VIOLATION OF
FACELESS SCHEME OF INCOME ESCAPING ASST AS NOTIFIED BY CBDT
: “Section 151A of the Act itself contemplates formulation of Scheme for both
assessment, reassessment or recomputation under Section 147 as well as for issuance of
notice under Section 148 of the Act. Therefore, the Scheme framed by the CBDT, which
covers both the aforesaid aspect of the provisions of Section 151A of the Act cannot be
said to be applicable only for one aspect, i.e., proceedings post the issue of notice under
Section 148 of the Act being assessment, reassessment or recomputation under Section
147 of the Act and inapplicable to the issuance of notice under Section 148 of the Act.
The Scheme is clearly applicable for issuance of notice under Section 148 of the Act
and accordingly, it is only the FAO which can issue the notice under Section 148 of the
Act and not the JAO.”
4) ON LACK OF FULFILLMENT OF JURISDICTIONAL CONDITION U/S
149(1)(B) EXTENDED PERIOD “ASSET” CONDITION HELD NOT
FULFILLED: “The question of a correctness of the claim of deduction under Section
80JJAA of the Act cannot represent escapement of income in the form of an asset. The
term ‘asset’ is defined in Explanation to Section 149 ofthe Act to include immovable
property being land or building or both, shares and securities, loans and advances,
deposit in bank account. The present case does not fall in any of the types of the assets
as mentioned above. Further, the alleged claim of disallowance of deduction also can
never fall under the category of either clause (b) or clause (c) as it is neither a case of
expenditure in relation to an event nor a case of an entry in the books of account as no
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entries are passed in the books of account for claiming a deduction under the provisions
of the Act. On this ground also the impugned notice will be invalid.”
5) ON ISSUE OF CHANGE OF OPINION HELD IMPERMISSINLE IN NEW
LAW:“We agree with petitioner that there cannot be a reopening based on a change of
opinion…The claim for deduction under Section 80JJAA of the Act was allowed by the
Assessing Officer in the previous years as well. Hence, the present case is clearly a case
of change of opinion or review of the original assessment order which is not permissible
even under the new provisions. Therefore, the concept of change of opinion being an in-
built test to check abuse of power by the Assessing Officer and the Assessing Officer
having allowed the claim of deduction under Section 80JJAA of the Act in the
assessment order dated 13th November 2017, now to disallow the same is based on a
clear change of opinion. Reassessment proceedings initiated on the basis of a mere
change of opinion is invalid and without jurisdiction. On this ground also the impugned
notice issued under Section
148 of the Act has to be quashed and set aside”
6) IMPACT OF CONSISTENCY ON IMPUGNED REOPENING : “ Therefore,
respondent no.1 cannot allege that income chargeable to tax has escaped assessment on
account of such claim being allowed for Assessment Year 2015-2016 when such claim
stands allowed for earlier years on identical facts, i.e., with respect to the same business
activity.”
7) ON VALDITY OF IMPUGNED APPROVAL U/S 151: “We are unable to agree with
Mr. Mistri to hold, in the facts and circumstances of the case, there was non application
of mind by the approving authority.”
HUMBLE PERSONAL OPINION & REMARKS OF MR GOEL ADV; THIS EPOCHAL

/PATH BREAKING ORDER SHOULD BE ANSWER TO INCOME TAX DEPARTMENT
CONSISTENT STAND TO ACT CONTARARY TO LAW AND SHOULD BE
RESPECTED AS FINAL VERDICT BY IMMEDIATELY STOPPING THE
CURRENT/ONGOING LITIGATION ACROSS VARIOUS COURTS ACROSS COUNTRY
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WHICH IS LEADING TO WASTEGE OF TIME OF ALL CONCERNED. ONE MAY BE
REMINDED OF :Hon’ble Supreme court SAGE WORDS (RARELY FOLLOWED) PER JUSTICE
SWATANTER KUMAR “Spl.Land Acquisition Officer vs Karigowda & Ors 2010 (5 SCC 708) (per justice Swatanter
Kumar) "The Government Authorities are expected to advert to the factors relating to the pendency of various appeals
including those before the Reference Court and take steps at the earliest to remedy the legal grievances raised by the
claimants at different levels of justice administration system. Despite its might, it is expected to be a responsible and
reluctant litigant as there is obligation upon the State to act fairly and for the benefit of the public at large. It will be
in harmony with the principle of proper administration that State also takes decisions which would avoid unnecessary
litigation. An established maxim "Boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint
fines litium", casts a duty upon the Court to bring litigation to an end or at least endure that if possible, no further
litigation arises from the cases pending before the Court in accordance with law. This doctrine would be applicable
with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other
Courts should decide similar cases particularly covered cases, expeditiously and in consonance with the
law of precedent” (latin maxim applied Boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint
fines litium :It is the duty of a good judge to dispose of a cause once and for all so that further actions do not arise on
the same cause (4 Rep. 15), Land Acquisition Officer v. Karigowda, (2010) 5 SCC 708: (2010) 2 SCC (Civ) 531:
AIR 2010 SC 2322.)
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NOTES OF KAPIL GOEL & SANDEEP GOEL ADV

ON LANDMARK/EPOCHAL DECISION OF HON’BLE BOMBAY HIGH COURT IN

HOST OF WIDELY IMPACTING PROPOSITIONS ON SEC 148/REOPENING LAID

1) TIME LIMTATION ASPECT U/S 149(1) FIRST PROVISO AY 2015-2016 HELD

HUMBLE PERSONAL OPINION & REMARKS OF MR GOEL ADV; THIS EPOCHAL

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