2023 (3) TMI 286 - HC - Income Tax

Maintainability of the writ petition in view of the alternative remedy available u/s 246 of filing an appeal - Reopening of assessment u/s 147 - Validity of order passed u/s 148A(d) of the Act, as it stood amended - HELD THAT:- Since the Assessing Officer while passing the order has given an interpretation and held against the petitioners, therefore, necessity arises for this Court to consider the correctness of such finding, which finding cannot be agitated before the Assessing Officer for re-assessment proceedings.

The Allahbad High Court in the case of Rajeev Bansal Vs. Union of India & Others [2023 (2) TMI 1081 - ALLAHABAD HIGH COURT] as well as Keenara Industries Pvt. Ltd Vs. Income Tax Officer [2023 (3) TMI 104 - GUJARAT HIGH COURT] have entertained the writ petitions where alternative remedy was available. The Calcutta High Court in the case of Aashiyana Housing Ltd. Vs. Union of India [2023 (3) TMI 221 - CALCUTTA HIGH COURT] has held that “the alternative remedy will not operate as an absolute bar for entertaining the writ petition as jurisdictional issue goes to the root of the matter. Therefore, we are of the view that appellant has made out a case for entertaining this appeal” and had also stayed the further re-assessment proceedings.

The Apex Court in the case of Red Chilli International Sales [2023 (1) TMI 674 - SC ORDER] 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. Accordingly, we set aside the observations made by the High Court in the impugned judgment observing that the writ petitions would not be maintainable in view of the alternative remedy. We do deem it open to examine this issue in the present case after having examined the notice u/S 148A(b), including annexure thereto, reply filed by the petitioner and the order under Section 148A(d).

Accordingly, this batch of writ petitions is admitted for final hearing. In the meanwhile, there shall be interim stay of the order passed u/s 148A(d) of the Act as well as consequential notice u/s 148 of the Act, until further orders.