Jurisdictional Issue Raised in a Writ Challenging Competence of Exercise of Statutory Power is Question of Law | HC

Case Details: Modern Living Solutions (P.) Ltd. V. Income-tax Officer - [2023] 153 taxmann.com 306 (Bombay)

Judiciary and Counsel Details

• • A.S. Chandurkar & M.W. Chandwani, JJ.
  • Abhay N. Agrawal, Adv. for the Petitioner.
  • Anand Parchure & C.J. Dhumane, Advs. for the Respondent.

Facts of the Case

Assessing Officer (AO) sought to reopen the assessment for the relevant assessment year. The assessee challenged notice by filing an instant writ petition. The assessee submitted that since there was no reason to believe, reopening the proceedings by the AO was without jurisdiction.

The AO raised a preliminary objection to the maintainability of the writ petition on the ground that an alternate statutory remedy was available to the assessee by way of an appeal. It was submitted that since such statutory remedy was available to the assessee, there was no reason to entertain the writ petition in the exercise of extraordinary jurisdiction.

High Court Held

The Bombay High Court held that an objection to the maintainability of a writ petition would go to the root of the matter as the Court would be incapable of receiving the lis for adjudication. However, the question of entertainability is within the realm of discretion of the Court since writ remedy is discretionary in nature.

When a jurisdictional issue is raised in a writ petition challenging the competence of exercise of statutory power in question, the same being a pure question of law, it can be considered in the exercise of writ jurisdiction.

In the instant case, the assessee has raised a challenge to initiating proceedings and exercising power under section 148 by urging that the statutory requirements prescribed by section 148 have not been satisfied. Since the jurisdiction of the ITO of initiating the proceedings itself is under challenge, the writ petition would be maintainable. In light of the challenge raised, it cannot be said that the writ petition is not maintainable.

List of Cases Reviewed

• • Godrej Sara Lee Ltd. v. Excise and Taxation Officer-Cum-Assessing Authority [Civil Appeal No. 5393 of 2010, dated 1-2-2023] (para 4) followed.

List of Cases Referred to

• • Godrej Sara Lee Ltd. v. Excise and Taxation Officer-Cum-Assessing Authority [Civil Appeal No. 5393 of 2010, dated 1-2-2023] (para 4).