The High Court dismissed my writ saying an appeal was available. Was it entitled to do that without looking at the point?
It depends, and the Supreme Court drew the distinction that matters. Maintainability goes to the root — it decides whether the court can receive the case at all. Entertainability is discretion. The mere availability of an appeal or revision that the petitioner has not pursued does not oust the High Court's jurisdiction or make the writ petition 'not maintainable', and where the challenge is to the very jurisdiction of the authority, or is a pure question of law, the petition deserves consideration on merits.
Decided by the Supreme Court (Supreme Court of India — S. Ravindra Bhat and Dipankar Datta, JJ.) on 2023-02-01, reported as 2023 SCC OnLine SC 95; 2023 LiveLaw (SC) 70; Civil Appeal No. 5393 of 2010. It bears on section Constitution Art. 226 of the Income Tax Act 1961, in Appeals, Revision & Rectification and How Tax Law Is Read matters.
This is the answer to a one-line dismissal order that says 'alternative remedy available, petition not maintainable'. It matters most at the show-cause stage, where the statutory appeal lies only against an order that does not yet exist: the assessee's complaint is that the authority has no jurisdiction to reach that stage at all, and this decision says a High Court cannot refuse to look at that by calling the petition incompetent. The department's counter is that entertainability is still discretionary and the discretion is usually exercised against the petitioner — which is true, and is why the jurisdiction point has to be a real one.
Binding on every court and authority in India.
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The appellant challenged before the Punjab and Haryana High Court the power of the Revisional Authority to reopen and revise assessments for 2003-04 and 2004-05 under the Haryana Value Added Tax Act, 2003, the dispute being whether its mosquito repellent products were taxable at 4 per cent or 10 per cent. The High Court dismissed the writ petition on the ground that a statutory appeal was available, relegating the appellant to that remedy.
The appeal was allowed. The High Court was wrong to dismiss the writ petition as 'not maintainable' merely because an appeal was available. The Supreme Court went on to set aside the revisional orders, holding that the Revisional Authority had disregarded a binding Tribunal decision and so breached judicial discipline.
The Court separated two things that are habitually run together. An objection to maintainability goes to the root of the matter: if it is good, the court cannot even receive the lis. Entertainability is a different question, lying entirely within the High Court's discretion, the writ remedy being discretionary. The availability of an alternative remedy which the petitioner has not pursued does not go to maintainability at all. The Court then restated the categories from Whirlpool Corporation at paragraph 15 — enforcement of fundamental rights, violation of natural justice, proceedings wholly without jurisdiction, and a challenge to the vires of an Act — and added that where the controversy is purely legal, and turns on the interpretation of statutory provisions rather than on disputed facts, the question should be decided by the High Court rather than left to the statutory forum. On the merits the revisional orders could not stand because a binding Tribunal ruling on the same question had been ignored.
The objection as to 'maintainability' goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of 'entertainability' is entirely within the realm of discretion of the high courts, writ remedy being discretionary.
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Handle my notice → Ask a CA on WhatsAppIt depends, and the Supreme Court drew the distinction that matters. Maintainability goes to the root — it decides whether the court can receive the case at all. Entertainability is discretion. The mere availability of an appeal or revision that the petitioner has not pursued does not oust the High Court's jurisdiction or make the writ petition 'not maintainable', and where the challenge is to the very jurisdiction of the authority, or is a pure question of law, the petition deserves consideration on merits. This was decided by the Supreme Court (Supreme Court of India — S. Ravindra Bhat and Dipankar Datta, JJ.) and bears on section Constitution Art. 226 of the Income Tax Act 1961. It is reported as 2023 SCC OnLine SC 95; 2023 LiveLaw (SC) 70; Civil Appeal No. 5393 of 2010. This is the answer to a one-line dismissal order that says 'alternative remedy available, petition not maintainable'. It matters most at the show-cause stage, where the statutory appeal lies only against an order that does not yet exist: the assessee's complaint is that the authority has no jurisdiction to reach that stage at all, and this decision says a High Court cannot refuse to look at that by calling the petition incompetent. The department's counter is that entertainability is still discretionary and the discretion is usually exercised against the petitioner — which is true, and is why the jurisdiction point has to be a real one. If it applies to you, the first step is this: If a writ has been dismissed as 'not maintainable' on alternative-remedy grounds alone, take this decision in appeal — the label is wrong even where the outcome might survive as an exercise of discretion.
The appellant challenged before the Punjab and Haryana High Court the power of the Revisional Authority to reopen and revise assessments for 2003-04 and 2004-05 under the Haryana Value Added Tax Act, 2003, the dispute being whether its mosquito repellent products were taxable at 4 per cent or 10 per cent. The High Court dismissed the writ petition on the ground that a statutory appeal was available, relegating the appellant to that remedy. The matter was decided on 2023-02-01 by the Supreme Court (Supreme Court of India — S. Ravindra Bhat and Dipankar Datta, JJ.). On those facts the Supreme Court held as follows. The appeal was allowed. The High Court was wrong to dismiss the writ petition as 'not maintainable' merely because an appeal was available. The Supreme Court went on to set aside the revisional orders, holding that the Revisional Authority had disregarded a binding Tribunal decision and so breached judicial discipline.
The Court separated two things that are habitually run together. An objection to maintainability goes to the root of the matter: if it is good, the court cannot even receive the lis. Entertainability is a different question, lying entirely within the High Court's discretion, the writ remedy being discretionary. The availability of an alternative remedy which the petitioner has not pursued does not go to maintainability at all. The Court then restated the categories from Whirlpool Corporation at paragraph 15 — enforcement of fundamental rights, violation of natural justice, proceedings wholly without jurisdiction, and a challenge to the vires of an Act — and added that where the controversy is purely legal, and turns on the interpretation of statutory provisions rather than on disputed facts, the question should be decided by the High Court rather than left to the statutory forum. On the merits the revisional orders could not stand because a binding Tribunal ruling on the same question had been ignored. In the words reproduced by the source cited on this page: "The objection as to 'maintainability' goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of 'entertainability' is entirely within the realm of discretion of the high courts, writ remedy being discretionary."
It was decided by the Supreme Court on 2023-02-01 and is reported as 2023 SCC OnLine SC 95; 2023 LiveLaw (SC) 70; Civil Appeal No. 5393 of 2010. Binding on every court and authority in India. A Supreme Court decision binds every assessing officer, every Commissioner (Appeals), every bench of the Income Tax Appellate Tribunal and every High Court in India. An officer who declines to follow it is acting contrary to law, and that refusal is itself a ground of appeal. On section Constitution Art. 226, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The appeal was allowed. The High Court was wrong to dismiss the writ petition as 'not maintainable' merely because an appeal was available. The Supreme Court went on to set aside the revisional orders, holding that the Revisional Authority had disregarded a binding Tribunal decision and so breached judicial discipline. It arises in Appeals, Revision & Rectification and How Tax Law Is Read matters, on section Constitution Art. 226 of the Income Tax Act 1961, and was decided by Supreme Court of India — S. Ravindra Bhat and Dipankar Datta, JJ.. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Plead the challenge as one to the jurisdiction or competence of the authority, or as a pure question of law on admitted facts, and say so in the opening paragraph of the petition. Cite the four Whirlpool categories the Court set out — fundamental rights, natural justice, proceedings wholly without jurisdiction, vires — and put your case in one of them. Do not treat this as a licence to bypass the appeal on a facts-and-figures dispute; the Court kept entertainability squarely within the High Court's discretion.
Still good law. No later decision overruling or doubting it was found in the material fetched. Note that the Supreme Court has also continued to press the opposite emphasis in other contexts — one page fetched in the same session referred to PHR Invent Educational Society v. UCO Bank for the proposition that a High Court should not entertain an Article 226 petition where an alternative statutory remedy is available. That decision was not itself fetched and read, so this entry does not describe it further; the two lines are not necessarily in conflict, because Godrej Sara Lee is about the label 'not maintainable' rather than about how the discretion should be exercised. That finding was checked against a published source, which is linked on this page, on 2026-08-20. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
This is not an income-tax case. It arose under the Haryana Value Added Tax Act, 2003, on revisional orders about the rate of tax on mosquito repellent for 2003-04 and 2004-05. It is included because it states the Article 226 rule generally, and because the itatonline direct-tax digest carries it as a direct-tax-relevant verdict. Do not cite it for anything about the Income-tax Act. The judgment text was fetched from the LiveLaw PDF of the reportable judgment, so the quotes are from the judgment and not from a digest. It does not tell you when a High Court will exercise the discretion in your favour, which is the question that actually decides a writ against a show-cause notice. It says nothing about the Income-tax Act, s.263, or show-cause notices at all — the notice-stage application is an inference, not a holding. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The appeal was allowed. The High Court was wrong to dismiss the writ petition as 'not maintainable' merely because an appeal was available. The Supreme Court went on to set aside the revisional orders, holding that the Revisional Authority had disregarded a binding Tribunal decision and so breached judicial discipline.
Every entry in this library links to where it was found, so you can check it yourself rather than take our word for it.
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