Madhya Pradesh High Court
Vishal Porwal vs Central Board Of Direct Taxes on 17 April, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
WP No. 6599 of 2023
(VISHAL PORWAL Vs CENTRAL BOARD OF DIRECT TAXES AND OTHERS)
Dated : 17-04-2023
Shri Shashwat Seth learned counsel for the petitioner.
In this petition under Article 226 of the Constitution of India, the petitioners
have assailed the impugned order passed u/S 148A(d) of the Income Tax Act(hereinafter
referred to as 'the Act') as also the notice issued u/S 148 of the said Act for initiating
reassessment proceedings u/S 147 of the Act for the Assessment Year 2013-14.
2. In this writ petition, jurisdictional issue has been raised by the petitioner,
therefore, in my prima-facie view, the question which is required to be considered is :
"Whether under what circumstances, a challenge can be
entertained to an order passed u/S 148A(d) of the Act, as
it stood amended ?"
3. Since the jurisdictional issue has been raised before this Court, even
assuming an alternative remedy u/S 246 of the Act of filing an appeal is available, it will
not operate as an absolute bar for entertaining the writ petition as jurisdictional issues
goes to the root of matter and it is one of the exceptional factors carved out by the
Hon'ble Supreme Court for exercise of jurisdiction under Article 226 of the Constitution
of India.
4. The learned counsel for the Revenue relying on the judgment of Apex
Court in the case of Union of India Vs. Ashish Agrawal reported in 2022 SCC
Online SC 543 contended that new law relating to assessment shall operate and that all
defence u/S 149 of the new law shall be available to the assessee. Therefore, the writ
petition is not maintainable and liable to be dismissed.
5. Since the Assessing Officer while passing the order has given an
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-04-2023
17:52:42
2
interpretation and held against the petitioner, 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.
6. The Allahbad High Court in the case of Rajeev Bansal Vs. Union of
India & Others in Writ Tax No. 1086/2022 as well as the Gujarat High Court in the
case of Keenara Industries Pvt. Ltd Vs. Income Tax Officer in R/Special Civil
Application No. 17321/2022 have entertained the writ petition where alternative remedy
was available. The Calcutta High Court in the case of Aashiyana Housing Ltd. Vs.
Union of India in Case No. APOT 185/2022 has held that "Âœthe 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.
7. The Apex Court in the case of Red Chilli International Sales Vs.
Income Tax Officer & Anr reported in 2023 Live law (SC) 16 has held that "Âœthe
impugned judgment rejecting the writ petition on the ground of alternative remedy
does not take into consideration several judgments of this Court on the jurisdiction of
High Court, as writ petitions have been entertained to be examined whether the
jurisdiction preconditions for issue of notice u/S 148 of the Act. 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 in depth 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) of
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-04-2023
17:52:42
3
the Income Tax Act, 1961."
8. Accordingly, this writ petition is admitted for final hearing.
9. 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.
10. The respondent revenue is free to file detailed reply on merits, if not already
filed.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Vindesh
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 18-04-2023
17:52:42
