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2024 (4) TMI 54 - HC - Income TaxMaintainability of the writ petition in HC - subject Matter of challenge before the writ Court - Validity of reassessment order passed - petitioner has also challenged the very basis for issuing notices under sections 148 and 148-A of Income Tax Act, 1961 - case set-up by the petitioner is that there can be no second proceeding for the same period and on the same issue which was the basis for the previous proceeding in which a final order passed and the said order is a subject matter of challenge in Appeal HELD THAT:- The powers exercised by the writ Court under Article 226 of the Constitution of India are plenary in nature. It is now well-settled that a technical objection or technicality of any nature shall not be an obstruction in exercise of such powers by the writ Court, except the self-imposed restriction by the writ Court. However, this is also too well-settled that it shall be a sound exercise of judicial discretion if the writ Court keeps in mind the statutory remedy to the aggrieved person and declines to entertain the petition. This restriction is followed by the writ Courts with more rigors in the matters relating to fiscal matters. Furthermore, in a catena of judgments, the Hon’ble Supreme Court has indicated that without a pre-deposit as provided under the statute for preferring an appeal or for seeking an order of stay, the writ petition shall not be entertained. Recently, in the context of Micro, Small and Medium Enterprises Development Act, 2006, the Hon’ble Supreme Court has held that without pre-deposit of 75% of the awarded amount as provided under section 19 of Micro, Small and Medium Enterprises Development Act, 2006 the writ petition was not maintainable [refer M/s India Glycols Limited Vs. Micro and Small Enterprises Facilitation Respondents Council, Medchal – Malkajgiri [2023 (11) TMI 1240 - SUPREME COURT] Under the Income Tax Act, there is a similar provision for deposit in cases where the assessee seeks an order of stay. Secondly, this is also no longer in the realm of doubt that a notice issued by a statutory authority cannot be made the subject matter of challenge before the writ Court. The assessing officer who issued the notice u/s 148 and 148-A of Income Tax Act, 1961 is the authority vested with the power to issue a notice under these provisions. However, the plea put forth by the petitioner is that the notice under section 148-A has been issued in breach of natural justice inasmuch as no opportunity of hearing was provided to the assessee. On this issue, all that we intend to indicate is that the requirements of natural justice are not inflexible and its applicability shall be determined on the basis of the facts in each case. Thus present writ petition has been dismissed on the ground that the petitioner has efficacious remedy under the Income Tax Act, 1961.
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