Change of opinion not a jurisdictional issue-Writ Petition against notice u/s 148 was dismissed by the High Court due to alternative remedy.
In a recent judgment, Hon’ble High Court of Jharkhand has dismissed a Writ Petition against notice u/s 148 holding that change in opinion cannot be said to be a jurisdictional issue and, hence, the same cannot be taken into consideration while deciding the maintainability of the writ petition, if the alternative remedy of appeal is available.
ABCAUS Case Law Citation:
4198 (2024) (08) abcaus.in HC
Important Case Laws relied upon:
Commissioner of Income Tax and others Vs. Chhabil Dass Agarwal, (2014) 1 SCC 603
Whirlpool Corpn. Vs. Registrar of Trade Marks, (1998) 8 SCC 1
Income Tax officer, Ward No. 16(2) Vs. Techspan India Private Limited and another, (2018) 6 SCC 685
In the instant case, the appellant assessee had filed a Writ Petition seeking to quash the order passed u/s 148A(d) and notice issued under section 148 of the Income Tax Act, 1961 (the Act).
The case of the assessee was that the impugned notices were wholly illegal, unjust and arbitrary and amounted to change of opinion, which cannot be sustained in the eyes of law especially in view of the fact that the grounds/reasons for re-opening of assessment for said assessment year already stood concluded vide Assessment Order passed under Section 143 read with Section 144 of the Act.
The Revenue opposed the Petition and submitted that the writ application itself was not maintainable on the ground of availability of alternative remedy of appeal under Article 246 of the Act. The Revenue relied upon the judgment rendered by the Hon’ble Supreme Court.
The Petitioner contended that the writ petition is maintainable on the ground that there is a jurisdictional error in making the assessment by the Assessing Officer as the issue of jurisdiction is based upon the change of opinion.
The Hon’ble High Court observed Law has been well been settled that there is no restriction in exercising the power by the High Court under Article 226 of the Constitution of India. However, there is self imposes restriction upon the High Court in exercising the power conferred under Article 226 of the Constitution of India and it can be exercised depending upon the facts and circumstances available in the case.
The Hon’ble High Court further observed that as held by Hon’ble Supreme Court in the case of jurisdictional error or if there is violation of principles of natural justice, then, even if the alternative remedy is available under the statute, the Writ Court can exercise its power under its extraordinary jurisdiction conferred under Article 226 of the Constitution of India.
The Hon’ble High Court observed that the Petitioner had agitated the question of jurisdictional error mainly on the ground that there is change in opinion.
The Hon’ble High Court further observed that Hon’ble Supreme Court has held that the jurisdictional error goes to the root of the issue. If any authority has gone beyond his jurisdiction and if the adjudication is being made, then such decision will be nullity in the eye of law and in such circumstances, it is not available for the Writ Court to relegate the party to avail the remedy of appeal, reason being that if the order itself is a nullity in the eye of law then why the party will be relegated to the appellate forum, rather than giving him a declaration of the order said to be the nullity due to the jurisdictional error.
The Hon’ble High Court opined that so far as the change of opinion was concerned, the same, cannot be said to be a jurisdictional issue, rather, the same is only be said to be a factual dispute depending upon the facts and circumstances upon which the litigants were relying. Therefore, the change in opinion cannot be said to be a jurisdictional issue and, hence, the same cannot be taken into consideration while deciding the maintainability of the writ petition, if the alternative remedy of appeal is available.
The Hon’ble High Court further observed that the impugned order was not a cryptic one, rather was a detailed order on consideration of the rival submissions of the parties based upon the appreciation of the documents.
Accordingly, the Hon’ble High Court dismissed the Writ Petition holding that the petition was not fit to be entertained on the ground of effective alternative remedy available under Section 246A of the Income Tax Act, 1961.
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