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2023 (9) TMI 553 - MADHYA PRADESH HIGH COURTReopening of assessment u/s 147 - notice time barred - availability of alternative efficacious remedy - as submitted the impugned notice under Section 148 of the Act is well within the prescribed period of limitation as contemplated under Section 149(1)(b) of the Act, as the impugned notice is required to be issued within six years in the matter of re-assessment as provided for under Section 149 (1)(b) - HELD THAT:- The period of six years has expired on 31-03-2019 i.e. the date on which the notice was issued, therefore, it is incorrect to say that the impugned notice is time barred. It is a well settled law that in the wake of availability of alternative efficacious remedy, writ jurisdiction under Article 226 of the Constitution of India may not be exercised. The extraordinary Constitutional Jurisdiction under Article 226 of the Constitution of India Primarily and Initially is an extraordinary jurisdiction and not a regular jurisdiction. It may be exercised sparingly. This Court is of the firm view that if remedy for Statutory Appeal is provided for, the delinquent is expected to avail the same as jurisdiction of the appellate Court neither can be substituted nor eclipsed invoking extraordinary constitutional jurisdiction. We agree with respondent that in view of Section 149(1)(b) of the Act, the impugned notice issued on 31-03-2019 was well within the prescribed period of limitation. Now at this stage, Shri Modi submits that petitioner may be relegated to avail the said remedy with a prayer that period of limitation since has expired, therefore, the appeal may be directed to be heard and decided without insisting on the question of limitation. Consequently, we dispose of this Writ Petition with following directions:- (1) that petitioner/ assessee if so advised, may appeal before the CIT Appeals within 30 days from the date of uploading of this order on the website of this Court; (2) the appellate Court without insisting on the question of limitation shall decide the appeal on its merits addressing the question raised on facts and in law as well as application for interim protection if filed. (3) for the period of 30 days, the interim protection granted by this Court on 17-03-2020 shall remain in force.
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