In a significant case Madhya Pradesh High Court while considering a bench of writ petitions observed that alternative remedy has not a bar to challenge reopening of assessment.
The writ petitions are filed by the assessee /petitioner against the order passed by the Assessing officer under Section 148(d) of Income Tax Act 1961 and notice issued for initiating Re-assessment proceedings under section 147 of the Income Tax Act 1961.
Veena Mandlik counsel for the revenue raised a preliminary objection with regard to maintainability of the writ petition in view of the alternative remedy available under section 246 of the Income Tax Act 1961 of filing an appeal.
Counsel for the petitioner contended that,
Even there is an alternative remedy under section 246 of the Income Tax Act 1961 of filing an appeal is available, it will not operate as an absolute bar for entertaining the writ petition as jurisdictional issues goes to the root of matter and it is one of the exceptional factors carved out by the Supreme Court for exercise of jurisdiction under Article 226 of the Constitution of India.
After considering the contentions of the both sides the division bench of the Judges S. A. Dharmadhikari and Prakash Chandra Gupta stayed the Reassessment order of assessee /petitioner and the petitions were posted for final hearing.
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