Alternative Remedy will not Operate as an Absolute Bar for Entertaining a Writ Petition: HC

Case Details: Ashiana Housing Ltd. v. Union of India - [2023] 149 taxmann.com 275 (Calcutta)

Judiciary and Counsel Details

• • T.S. Sivagnanam & Hiranmay Bhattacharyya, JJ.
  • Pratyush Jhunjhunwala & S. Rudra, Advs. for the Appellant.
  • Vipul Kundalia & Amit Sharma, Advs. for the Respondent.

Facts of the Case

The assessee filed a writ petition challenging the order under section 148A of the Income-tax Act. Single Judge opined that the said order is not itself an assessment or a demand. The assessee will have ample opportunity and scope in the proceedings after the issuance of notice to make out a case for dropping the proceedings under section 147. Thus, he dismissed the petition filed by the assessee.

Aggrieved by the dismissal, the assessee filed an intra-court appeal.

High Court Held

The High Court held that the legal principle which had been laid down by several decisions of the Hon’ble Supreme Court while interpreting the provision of the Act before its amendment would equally apply with full force while considering the correctness of an order passed under section 148A(d).

The court held that it would not be right to hold that all issues can be adjudicated at the time of the reassessment proceedings. When a jurisdictional issue is raised before the Court, even assuming an alternative remedy is available, it will not operate as an absolute bar for entertaining the writ petition as the jurisdictional issue goes to the root of the matter.

It is one of the exceptional factors carved out by the Hon’ble Supreme Court for the exercise of jurisdiction under Article 226 of the Constitution of India. Accordingly, the appeal stands admitted.

List of Cases Referred to

• • Union of India v. Ashish Agarwal [2022] 138 taxmann.com 64/286 Taxman 183/444 ITR 1 (SC) (para 4).