Orissa High Court
Shiv Mettalicks Pvt. Ltd. vs Principal Commissioner Of Income on 10 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.36314 of 2022
Shiv Mettalicks Pvt. Ltd., Rourkela .... Petitioner
Mr. Aura Mozumdar, Mr. S. K. Acharya and
Mr. Abhijeet Agarwal, Advocates
-versus-
Principal Commissioner of Income .... Opposite Parties
Tax, Sambalpur and others
Mr. Sidharth Sankar Mohapatra, Senior Standing Counsel for
Income Tax Department
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
10.01.2023
Order No.
Dr. S. Muralidhar, CJ.
01. 1. The memo of appearance filed by Mr. Sidharth Sankar
Mohapatra, learned Senior Standing Counsel for Income Tax
Department-Opposite Parties is taken on record.
2. As regards the challenge to an order passed under Section
148A(d) of the Income Tax Act, 1961 (Act) at an intermediate
stage, this Court has in its order dated 1st December, 2022 in a batch
of writ petitions of which W.P.(C) No.9191 of 2022 (Kailash Kedia
v. Income Tax Officer) was a lead matter, declined to interfere
relegating the parties to a stage of passing of assessment orders
under Section 148 of the Act. In doing so, this Court followed the
order dated 2nd September, 2022 of the Supreme Court of India in
SLP(C) No.14823 of 2022 (Anshul Jain v. Principal
Commissioner of Income Tax), which in turn affirmed the
judgment dated 2nd June, 2022 of the Division Bench of the Punjab
and Haryana High Court in CWP No.10219 of 2022 (Anshul Jain
v. Principal Commissioner of Income Tax).
3. The Court's attention has been drawn to a subsequent order dated
3rd January, 2023 of another Bench of the Supreme Court of India,
the composition of which is different from the Bench which heard
the aforementioned case in Anshul Jain (supra), where another
order dated 2nd June, 2022 of the High Court of Punjab and Haryana
in CWP No.10073 of 2022 (Red Chilli International Sales v.
Income Tax Officer) was challenged. In the said SLP (C) No.86 of
2023, the following order was passed by the Supreme Court of
India on 3rd January, 2023:
"Delay condoned.
We with the petitioner that the 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 under Section 148 of the
Income Tax Act, 1961 is satisfied. The provisions of reopening
under the Income Tax Act, 1961 have undergone an amendment
by the Finance Act, 2021, and consequently the matter would
require a 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 petition would not be maintainable in view of the
alternative remedy, clarify that this issue would be examined in
depth by the High Court if and when it arise for consideration.
We do deem it open to examine this issue in the present case
after having examined the notice under Section 148A (b)
including the annexure thereto, the reply filed by the petitioner
and the order under Section 148A (d) of the Income Tax Act,
1961.
Recording the aforesaid, the special leave petition is disposed
of. We clarify that the dismissal of the special leave petition
would not be construed as a findings or observations on the
merits on case.
Pending application(s), if any, shall stand disposed of."
4. As the Court views it although the aforementioned order did not
take note of the order of the Coordinate Bench of the Supreme
Court of India in Anshul Jain (supra), the net result is that the
Supreme Court of India declined to interfere with the order of the
Punjab and Haryana High Court in Red Chilli International Sales
(supra) matter.
5. Consequently, this Court is not persuaded that it should interfere
with the impugned order dated 24th November, 2022 in the present
case under Section 148A(d) of the Act.
6. Learned counsel for the Petitioner urges that apart from the
ground that the notice under Section 148A(b) of the Act was time
barred, it is also vitiated by what he terms as 'mere change of
opinion' by the Assessing Officer.
7. Needless to say, it will be open to the Petitioner to raise all
grounds available to the Petitioner in accordance with law,
including the above grounds at the appropriate stage as explained
by this Court in its order in Kailash Kedia (supra).
8. The petition is accordingly disposed of in the above terms.
(Dr. S. Muralidhar)
Chief Justice
(M.S. Raman)
Judge
M. Panda
