|CORAM:||A.K. Sikri J., Abhay Manohar Sapre J|
|CATCH WORDS:||Reopening, Writ jurisdiction, Writ Petition|
|COUNSEL:||Ajay Vohra, Arvind Datar, J.D. Mistri, Nageshwar Rao|
|DATE:||December 8, 2016 (Date of pronouncement)|
|DATE:||December 19, 2016 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 147/ 148: A Writ Petition to challenge the issue of a reopening notice u/s 148 is maintainable as per the law laid down in Calcutta Discount 41 ITR 191 (SC). The law laid down in Chhabil Dass Agarwal 357 ITR 357 (SC) deals with the maintainability of a Writ to challenge the reassessment order and does not apply to a challenge to the reassessment notice|
The High Courts dismissed the writ petitions preferred by the assessee challenging the issuance of notice under Section 148 of the Income Tax Act, 1961 and the reasons which were recorded by the Assessing Officer for reopening the assessment. The writ petitions were dismissed by the High Courts as not maintainable. The aforesaid view taken is contrary to the law laid down by this Court in Calcutta Discount Limited Company vs. Incom Tax Officer, Companies District I, Calcutta & Anr. [(1961) 41 ITR 191 (SC)]. We, thus, set aside the impugned judgments and remit the cases to the respective High Courts to decide the writ petitions on merits. We may make it clear that this Court has not made any observations on the merits of the cases, i.e. the contentions which are raised by the appellant challenging the move of the Income Tax Authorities to re-open the assessment. Each case shall be examined on its own merits keeping in view the scope of judicial review while entertaining such matters, as laid down by this Court in various judgments. We are conscious of the fact that the High Court has referred to the Judgment of this Court in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, [(2013) 357 ITR 357 (SC)]. We find that the principle laid down in the said case does not apply to these cases.
This judgement is welcome one for assessees aggrieved.