The High Court threw out my writ petition against a section 148 notice saying I had an alternative remedy. Was it right to refuse to hear me at all?
Not on that reasoning. The Supreme Court set aside the Punjab and Haryana High Court's observation that a writ petition against a reassessment notice is not maintainable because of the alternative remedy. It said the observation did not take into account several judgments of the Supreme Court on the High Court's jurisdiction, writ petitions having been entertained to examine whether the jurisdictional pre-conditions for a section 148 notice are satisfied, and that the reopening provisions as amended by the Finance Act 2021 need deeper consideration in the light of the earlier case law. The special leave petition was disposed of without any finding on the merits.
Decided by the Supreme Court (Supreme Court of India — Sanjiv Khanna J and M.M. Sundresh J) on 2023-01-03, reported as Petition(s) for Special Leave to Appeal (C) No. 86/2023, arising out of the judgment dated 2 June 2022 in CWP No. 10073/2022 (High Court of Punjab and Haryana) (Supreme Court of India). It bears on section 148, section 148A of the Income Tax Act 1961, in Reassessment & Reopening and Appeals matters.
Alternative remedy is the Department's first answer to every writ petition against a reassessment notice, and High Courts frequently accept it. This order is the short authority that the objection cannot be applied mechanically: where what is challenged is whether the jurisdictional pre-conditions for issuing a section 148 notice exist at all, the writ jurisdiction has always been available, and the Supreme Court has expressly kept that question open for deeper examination under the post-Finance Act 2021 scheme. It is a maintainability authority and nothing more — the Court set aside the High Court's observation while clarifying that the disposal implies no view on the merits, so it cannot be cited for anything about the validity of the notice itself.
Binding on every court and authority in India.
Read aloud by your device. Press again to stop.
The petitioner challenged a reopening under section 148 of the Income-tax Act 1961 by writ petition, CWP No. 10073 of 2022, before the High Court of Punjab and Haryana at Chandigarh. By judgment dated 2 June 2022 the High Court rejected the petition on the ground that the petitioner had an alternative remedy, and observed that the writ petition would not be maintainable for that reason. The petitioner applied for special leave to appeal. There was a delay in refiling, which was condoned. Before the Supreme Court the petitioner argued that the High Court's approach ignored the line of authority in which writ petitions have been entertained to examine whether the jurisdictional pre-conditions for issuing a section 148 notice are satisfied. The Court had before it the notice under section 148A(b) with its annexure, the petitioner's reply and the order under section 148A(d). No appearance is recorded for the respondents.
The Court agreed with the petitioner that the impugned judgment, in rejecting the writ petition on the ground of alternative remedy, did not take into consideration several judgments of the Supreme Court on the jurisdiction of the High Court, writ petitions having been entertained to examine whether the jurisdictional pre-conditions for issue of a notice under section 148 are satisfied. It further observed that the reopening provisions have been amended by the Finance Act 2021 and that the matter would require deeper and in-depth consideration in the light of the earlier case law. The Court accordingly set aside the observations made by the High Court that the writ petition would not be maintainable in view of the alternative remedy, and clarified that the issue would be examined in depth by the High Court if and when it arises for consideration. The special leave petition was disposed of, with a clarification that the disposal is not to be construed as any finding or observation on the merits.
The order does not develop the point at length. Its basis is that the availability of an alternative remedy is a rule of discretion rather than a bar, and that the discretion has consistently been exercised in favour of entertaining a writ petition where the question is whether the conditions on which the jurisdiction to reopen depends were satisfied at all. The High Court's blanket observation was therefore inconsistent with the Supreme Court's own authority, which it had not considered. The Court added a second reason for not shutting the door: the reassessment scheme was recast by the Finance Act 2021, so how the earlier case law applies to sections 148A and 148 as they now stand calls for deeper examination, and that examination should be available in an appropriate case. Having examined the section 148A(b) notice with its annexure, the assessee's reply and the section 148A(d) order, the Court confined itself to setting aside the maintainability observation and expressly refrained from saying anything on the merits of the reopening.
Upload it and we will read it, work out your deadline and draft the reply. A CA reviews before anything is filed.
Handle my notice → Ask a CA on WhatsAppNot on that reasoning. The Supreme Court set aside the Punjab and Haryana High Court's observation that a writ petition against a reassessment notice is not maintainable because of the alternative remedy. It said the observation did not take into account several judgments of the Supreme Court on the High Court's jurisdiction, writ petitions having been entertained to examine whether the jurisdictional pre-conditions for a section 148 notice are satisfied, and that the reopening provisions as amended by the Finance Act 2021 need deeper consideration in the light of the earlier case law. The special leave petition was disposed of without any finding on the merits. This was decided by the Supreme Court (Supreme Court of India — Sanjiv Khanna J and M.M. Sundresh J) and bears on section 148, section 148A of the Income Tax Act 1961. It is reported as Petition(s) for Special Leave to Appeal (C) No. 86/2023, arising out of the judgment dated 2 June 2022 in CWP No. 10073/2022 (High Court of Punjab and Haryana) (Supreme Court of India). Alternative remedy is the Department's first answer to every writ petition against a reassessment notice, and High Courts frequently accept it. This order is the short authority that the objection cannot be applied mechanically: where what is challenged is whether the jurisdictional pre-conditions for issuing a section 148 notice exist at all, the writ jurisdiction has always been available, and the Supreme Court has expressly kept that question open for deeper examination under the post-Finance Act 2021 scheme. It is a maintainability authority and nothing more — the Court set aside the High Court's observation while clarifying that the disposal implies no view on the merits, so it cannot be cited for anything about the validity of the notice itself. If it applies to you, the first step is this: When the Department raises alternative remedy, frame the petition around the jurisdictional pre-conditions for the section 148 notice, not around the merits of the addition.
The petitioner challenged a reopening under section 148 of the Income-tax Act 1961 by writ petition, CWP No. 10073 of 2022, before the High Court of Punjab and Haryana at Chandigarh. By judgment dated 2 June 2022 the High Court rejected the petition on the ground that the petitioner had an alternative remedy, and observed that the writ petition would not be maintainable for that reason. The petitioner applied for special leave to appeal. There was a delay in refiling, which was condoned. Before the Supreme Court the petitioner argued that the High Court's approach ignored the line of authority in which writ petitions have been entertained to examine whether the jurisdictional pre-conditions for issuing a section 148 notice are satisfied. The Court had before it the notice under section 148A(b) with its annexure, the petitioner's reply and the order under section 148A(d). No appearance is recorded for the respondents. The matter was decided on 2023-01-03 by the Supreme Court (Supreme Court of India — Sanjiv Khanna J and M.M. Sundresh J). On those facts the Supreme Court held as follows. The Court agreed with the petitioner that the impugned judgment, in rejecting the writ petition on the ground of alternative remedy, did not take into consideration several judgments of the Supreme Court on the jurisdiction of the High Court, writ petitions having been entertained to examine whether the jurisdictional pre-conditions for issue of a notice under section 148 are satisfied. It further observed that the reopening provisions have been amended by the Finance Act 2021 and that the matter would require deeper and in-depth consideration in the light of the earlier case law. The Court accordingly set aside the observations made by the High Court that the writ petition would not be maintainable in view of the alternative remedy, and clarified that the issue would be examined in depth by the High Court if and when it arises for consideration. The special leave petition was disposed of, with a clarification that the disposal is not to be construed as any finding or observation on the merits.
The order does not develop the point at length. Its basis is that the availability of an alternative remedy is a rule of discretion rather than a bar, and that the discretion has consistently been exercised in favour of entertaining a writ petition where the question is whether the conditions on which the jurisdiction to reopen depends were satisfied at all. The High Court's blanket observation was therefore inconsistent with the Supreme Court's own authority, which it had not considered. The Court added a second reason for not shutting the door: the reassessment scheme was recast by the Finance Act 2021, so how the earlier case law applies to sections 148A and 148 as they now stand calls for deeper examination, and that examination should be available in an appropriate case. Having examined the section 148A(b) notice with its annexure, the assessee's reply and the section 148A(d) order, the Court confined itself to setting aside the maintainability observation and expressly refrained from saying anything on the merits of the reopening.
It was decided by the Supreme Court on 2023-01-03 and is reported as Petition(s) for Special Leave to Appeal (C) No. 86/2023, arising out of the judgment dated 2 June 2022 in CWP No. 10073/2022 (High Court of Punjab and Haryana) (Supreme Court of India). 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 148, section 148A, 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 cuts both ways and is cited by both sides. The Court agreed with the petitioner that the impugned judgment, in rejecting the writ petition on the ground of alternative remedy, did not take into consideration several judgments of the Supreme Court on the jurisdiction of the High Court, writ petitions having been entertained to examine whether the jurisdictional pre-conditions for issue of a notice under section 148 are satisfied. It further observed that the reopening provisions have been amended by the Finance Act 2021 and that the matter would require deeper and in-depth consideration in the light of the earlier case law. The Court accordingly set aside the observations made by the High Court that the writ petition would not be maintainable in view of the alternative remedy, and clarified that the issue would be examined in depth by the High Court if and when it arises for consideration. The special leave petition was disposed of, with a clarification that the disposal is not to be construed as any finding or observation on the merits. It arises in Reassessment & Reopening and Appeals matters, on section 148, section 148A of the Income Tax Act 1961, and was decided by Supreme Court of India — Sanjiv Khanna J and M.M. Sundresh J. 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. Cite this order together with the Supreme Court decisions it refers to on the writ jurisdiction, and point out that the question under the amended scheme is expressly left open. Put the section 148A(b) notice with its annexure, your reply and the section 148A(d) order on the record; the Court examined precisely those documents. Do not rely on this order for any proposition about the validity of a reopening; the Court clarified it made no finding on the merits.
Still good law. A brief order of January 2023 by a two-judge Bench; the source page records it cited in three later matters. No later decision was available here to check it against. No source could be cited for that finding. 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.
The source is the Supreme Court's record of proceedings, not a law-report text, and it is short and in places evidently mistyped — one sentence reads 'We with the petitioner' where agreement is plainly meant, and the sentence beginning 'We do deem it open to examine this issue in the present case' is inconsistent with the Court's clarification that it made no finding on the merits, so the Court's precise intention on that sentence cannot be stated with confidence and no key_quote is given. The order does not name the judgments of the Supreme Court on the writ jurisdiction that it says the High Court failed to consider, and it says nothing about the facts of the reopening, the assessment year or the alleged escaped income. Favours is recorded as mixed: the petitioner succeeded in getting the maintainability observation set aside but obtained no relief against the reopening. 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 Court agreed with the petitioner that the impugned judgment, in rejecting the writ petition on the ground of alternative remedy, did not take into consideration several judgments of the Supreme Court on the jurisdiction of the High Court, writ petitions having been entertained to examine whether the jurisdictional pre-conditions for issue of a notice under section 148 are satisfied. It further observed that the reopening provisions have been amended by the Finance Act 2021 and that the matter would require deeper and in-depth consideration in the light of the earlier case law. The Court accordingly set aside the observations made by the High Court that the writ petition would not be maintainable in view of the alternative remedy, and clarified that the issue would be examined in depth by the High Court if and when it arises for consideration. The special leave petition was disposed of, with a clarification that the disposal is not to be construed as any finding or observation on the merits.
Every entry in this library links to where it was found, so you can check it yourself rather than take our word for it.
My return was only processed under 143(1). Does that stop the department reopening it later?
How much am I actually required to disclose — and can they reopen because the officer drew the wrong conclusion?
The sanctioning authority just wrote 'yes' and signed. Is that a sanction?
A reassessment was done in between. Does the two-year clock for s.263 restart from it?