Assessee can’t seek parallel remedy by filing writ on same day of lodging of objections before AO: Bombay HC

Case Details: John Sebastian Zezito Lobo v. ACIT - [2021] 131 taxmann.com 79 (Bombay)

Judiciary and Counsel Details

• • Dipankar Datta, CJ. and M.S. Sonak, J.
  • Kapil D. Kerkar and T. Sequeira, Advs. for the Petitioner.
  • Ms. Amira A. Razaq, Standing Counsel for the Respondent.

Facts of the Case

Assessing Officer (AO) has issued notice under section 148 to assessee seeking to reopen the assessment. After receipt of impugned notice assessee sought reasons for issuance thereof, which were supplied to him by the Assessing Officer.
After receiving communication from AO, the assessee lodged an objection by his representation before him, urging several grounds. However, on the same day, he also filed the writ petition before the Bombay High Court. The assessee challenged the reassessment notice on the ground that the jurisdictional fact for issuance of such notice was absent.

High Court Held

The Bombay High Court held that they do not appreciate the attempt of the assessee to have the notice under section 148 interdicted by presenting the instant writ petition on the same day of lodging of objection to the notice by submitting a detailed reply.
If the assessee perceived that there was no justification for the AO to issue the reassessment notice since the jurisdictional fact was absent, he could have raised the said point at the first instance before High Court prior to submitting to the jurisdiction of the AO.
An error of jurisdictional fact is a point on which an action for judicial review could be maintained without relegating the notice to the AO. In such an event, the Court could have examined the point raised by the assessee. However, the assessee appeared to have pursued the writ remedy as to a parallel remedy, which is impermissible in law.

List of Cases Referred to

• • GKN Driveshafts (India) Ltd. v. ITO [2002] 125 Taxman 963/[2003] 259 ITR 19 (SC) (para 8)
  • Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 161 Taxman 316/291 ITR 500 (SC) (para 8).