Sharda Lunkar v. The Union of India and 3 Ors

ORDER

20.01.2023 [N. Kotiswar Singh, CJ(Acting)] Heard Dr. A.K. Saraf, learned Senior counsel assisted by Mr. P. Baruah, for the appellant. Also heard Mr. S. Chetia, learned counsel appearing for the respondents.

¶2The present appeal has been preferred against the order dated 31.03.2022 passed by the learned Single Judge in WP(C) No.2324/2022 by which the challenge putup against the notice dated 31.03.2021 issued under Section 148 of the Income Tax Act, 1961 by which the authorities sought to reopen the assessment year of 2015-16 was rejected by the learned Single Judge on the ground that there is an alternative remedy available under Section 246(i)

(b) of the Income Tax Act, 1961.

¶3It is the case of the learned Senior counsel for the appellant that the said appellate forum is available in respect of the assessment made after the reopening but there is no such appellate forum available qua notice issued under Section 148 of the Income Tax Act, 1961. In this regard, learned Senior counsel for the appellant also relies on the decision of the Hon'ble Supreme Court in Red Chilli International Sales Vs. Income Tax Officer & Anr. Page No.# 3/4 in Special Leave to Appeal (C) No.86/2023, decided on 03.01.2023 [2023 LiveLaw (SC) 16], which reads as follows:- "........................ 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 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 noticed 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. …...................."

¶4We are also of the view that since the appellate forum is provided as regards the reassessment subsequently made, but not regarding the notice issued, the challenge to the issuance of the notice under Section 148 may be heard, in as much as there is no alternative remedy available to challenge the notice issued under Section 148 of the Income Tax Act, 1961.

¶5Accordingly, we allow this appeal by setting aside the impugned order dated

31.03.2022 passed in WP(C) No.2324/2022 and the matter is remanded to the learned Single Page No.# 4/4 Judge for fresh consideration on merit of the plea of the appellant. Comparing Assistant Sd/- Soumitra Saikia JUDGE Sd/- N. Kotiswar Singh CHIEF JUSTICE (ACTING)

PageoNo.#o1/4 GAHC010072292022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/142/2022o SHARDAoLUNKARo D/OoLATEoBHANWARLALoBHURA,oR/OoGROUNDoFLOOR,oSAGARo APARTMENT,oS.J.oROAD,oATHGAON,oGUWAHATI-781001,oASSAM VERSUSo THEoUNIONoOFoINDIAoANDo3oORS.o REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoINDIA,o MINISTRYoOFoFINANCE,oDEPARTMENToOFoREVENUE,oROOMoNO.o46,o NORTHoBLOCK,oNEWoDELHI-110001 2:PRINCIPALoCOMMISSIONERoOFoINCOMEoTAX oGUWAHATI-I oAAYAKARoBHAWAN oCHRISTIANoBASTI oGUWAHATI-781005 3:INCOMEoTAXoOFFICER oWARD-2(1) oGUWAHATI oAAYAKARoBHAWAN oCHRISTIANoBASTI oGUWAHATI-781005 4:NATIONALoFACESLESSoASSESSMENToCENTRE oDELHI oINCOMEoTAXoDEPARTMENT oARAoCENTRE oE-2 oGROUNDoFLOOR Page No.# 2/4 JHANDEWALA EXTENSION NEW DELHI-11000 Advocate for the Petitioner : DR. A SARAF Advocate for the Respondent : ASSTT.S.G.I. BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON'BLE MR. JUSTICE SOUMITRA SAIKIA