Whether Writ petition challenging lack of jurisdiction to issue notice u/s 148 on the ground that it is based on change of opinion & preconditions of S.147 are not satisfied is maintainable?

Last updated: 18 August 2014

Court :
Bombay High Court

Brief :
The assessee engaged in the business of share trading and regular purchase and sale of shares filed a Writ Petition challenging notice issued u/s 148 to reopen assessment. The department that the Writ Petition is not maintainable to challenge the notice issued u/s 148 as per the Madras High Court judgment in JCIT VsKalanithiMaran. According to Madras High Court in JCIT VsKalanithiMaran, the Court should not exercise its writ jurisdiction under Article 226 of the Constitution of India and the petitioner should be left to avail of the statutory remedies available under the Act is not acceptable. The challenges to the reopening notice u/s 147 and 148 of the Act was not interfered with by the Madras High Court as the challenge before it appears to have been with regard to adjudicating facts as contrasted with the jurisdictional facts raised in this case. It was held that decision of the Madras High Court is of no avail in the facts of the present case and the petition is allowed.

Citation :
Aroni Commercials Ltd – Petitioner – Versus – Assistant Commissioner of Income Tax - Respondent