Madhya Pradesh High Court | While deciding several writ petitions filed by the petitioners against the order passed by the Assessing officer, S.A. Dharmadhikari and Prakash Chandra Gupta, JJ., admitted the writ petitions for the final hearing and stayed the reassessment proceedings.
In the present matter, the Assessing officer passed an order under S. 148(d) of Income Tax Act, 1961 and issued notice for initiating Re-assessment proceedings under S. 147 of the Income Tax Act 1961. Aggrieved by the impugned order passed by the Assessing officer, the assesses /petitioners preferred a bunch of writ petitions challenging the same.
The respondent contended that the present writ petition is not maintainable as an alternative remedy is available under S. 246 of the Income Tax Act, 1961 of filing an appeal. On the other hand the petitioners contended that availability of alternative remedy under S. 246 of the Income Tax Act, 1961 will not operate as an absolute bar for entertaining the writ petition as jurisdictional issues goes to the root of matter and it is one of the exceptional factors carved out by the Supreme Court for exercise of jurisdiction under Art. 226 of the Constitution of India.
The moot point to be considered by the Court in the present matter is “Whether under what circumstances, a challenge can be entertained to an order passed u/S 148A(d) of the Act, as it stood amended?”
The Court relied on Red Chilli International Sales v. ITO, Special Leave to Appeal (C) No(s). 86/2023 dated 03-01-2023 where the Supreme Court held that even if an alternative remedy is available, the writ petitions are entertained to examine whether the conditions for the issuance of a notice under S. 148 of the Income Tax Act, 1961 are satisfied.
“…the impugned judgment rejecting the writ petition on the ground of alternative remedy does not take into consideration several judgments of this Court on the jurisdiction of High Court, as writ petitions have been entertained to be examined whether the jurisdiction preconditions for issue of notice u/S 148 of the Act. The provisions of reopening under the act of 1961 has undergone an amendment by the Finance Act, 2021 and consequently, the matter would require deeper and indepth consideration keeping in view the earlier case law.”
While admitting the writ petitions for final hearing and staying the impugned order, the Court held that even if an alternative remedy is available, it will not operate as an absolute bar for entertaining the writ petition as the jurisdictional issues goes to the root of matter.
[Space Enclave (P) Ltd. v. Income Tax Department, 2023 SCC OnLine MP 706, decided on 01-03-2023]
Advocates who appeared in this case:
Mr. Yatish Kumar Laad, Mr. P. M. Choudhary, Mr. Anand Prabhawalkar, Mr. Madhav Khandelwal, Mr. V.N. Dubey, Mr. Ibrahim Kannodwala, Ms. Nisha Lahoti and Mr. Sujeet Deshmukh, Counsel for the Petitioners;
Ms. Veena Mandlik, Counsel for the Respondent.
