When Can a CA Advise Filing a Writ Instead of a Statutory Appeal?

A Chartered Accountant often faces a hard choice between following the statutory appeal route under tax laws and advising a writ petition before the High Court under Article 226 of the Constitution of India. High Courts do not act as routine appellate forums in tax matters.

A writ petition is meant to correct serious legal defects such as lack of jurisdiction, breach of natural justice, limitation bar, or failure to follow mandatory statutory conditions. A CA must advise a writ only when the case fits these recognised grounds.

Statutory appeal is the default remedy

Most fiscal laws provide a complete appeal mechanism. Under the Income Tax Act, 1961, disputes travel from the assessing authority to Commissioner (Appeals), then to the Income Tax Appellate Tribunal, and then to the High Court on substantial questions of law. Under GST, the adjudication order goes to the first appellate authority and then to the Tribunal (where functional), and thereafter to High Courts and Supreme Court.

Courts insist that taxpayers use this structure. In Tvl. Sree Karumariamman Granites v. Assistant Commissioner of Income Tax, the Madras High Court refused to entertain a writ petition because an effective statutory remedy under Section 246A existed. This shows the standard judicial approach: writ is not a substitute for appeal.

A CA must advise statutory appeal when the dispute is about additions, disallowances, classification, valuation, quantification, or evidence. A writ court does not re-check accounts or re-appreciate facts.

What a writ petition is in tax practice

A writ petition is a constitutional remedy to control unlawful action by public authorities. In tax matters, the most used writs are Certiorari (to quash an illegal order), Prohibition (to stop proceedings without jurisdiction), and Mandamus (to compel the authority to act according to law).

In tax practice, writs are filed to challenge illegal notices, unlawful reassessment initiation, denial of hearing, unlawful recovery, illegal attachment, or procedural failures that destroy fairness.

Rule of alternative remedy and its exceptions

The “alternative remedy” rule means that when a statute provides an appeal, writ jurisdiction is not used as the first option. Courts apply this rule to protect the statutory design and prevent High Courts from becoming routine appeal forums.

The Supreme Court in Whirlpool Corporation v. Registrar of Trademarks and Harbanslal Sahnia v. Indian Oil Corporation laid down the well-settled exceptions. A writ petition remains maintainable where fundamental rights are affected, where there is a breach of natural justice, where the action is without jurisdiction, or where the validity of a law is challenged.

A CA must test every case on this framework.

Key situations where a CA must advise a writ

1. Notice is without jurisdiction or issued to a non-existent person

This is one of the strongest writ grounds. A jurisdiction defect cannot be cured by appeal.

In Virender Kumar & Sons Jewellers LLP v. Income Tax Officer, the Calcutta High Court quashed reassessment proceedings because the notice was issued in the name of a company that had already converted into an LLP. The court set aside the notice and order, while granting liberty to issue a fresh notice as per law.

A CA must advise writ when the notice is issued against a dissolved company, amalgamated entity, converted entity, or wrong PAN.

2. Proceedings are barred by limitation

Limitation in reassessment is not a technical defect. It is a jurisdiction condition. If limitation bars reopening, the notice is void.

A Delhi High Court decision quashed the reassessment order under Section 148A(d) and the notice under Section 148 because the limitation under Section 149 had expired and the notice was not permissible in law.

A CA must advise writ when limitation computation is clear from the record.

3. Mandatory sanction or approval is missing or from the wrong authority

Under Income Tax reassessment, approval under Section 151 is a statutory condition. A defect in approval strikes at jurisdiction.

In a case involving H&M India, the Delhi High Court held that the TOLA time-extension does not waive the mandatory approval requirement under Section 151 for reassessment beyond three years, and the notice was set aside.

This ground is valuable for CAs because approval defects are visible from the reassessment file and sanction note.

4. Mandatory statutory notice step is skipped

Some notices are mandatory in reassessment. If the Assessing Officer does not issue a required notice, the entire proceeding fails.

In Shaily Juneja v. ACIT, the Delhi High Court quashed reassessment because the Assessing Officer failed to issue a notice under Section 143(2).

This is a pure legal ground and fits writ jurisdiction.

5. Natural justice is violated in a manner that affects the outcome

This is the most common writ ground in practice.

High Courts interfere where notice was not served, reply was ignored, hearing was denied, relied documents were not supplied, or the order is non-speaking.

In Nilam Mantri v. Income Tax Officer, the Punjab and Haryana High Court quashed the reassessment action because the notice under Section 148A(b) was not served and the assessee did not get an opportunity to respond. The court also imposed costs on the department.

In Agriculture Produce Market Committee, Khamgaon, the Bombay High Court set aside an order under Section 148A(d) because the assessee filed the reply on the last date but the order recorded that no explanation was filed.

Under GST, Section 75(4) requires hearing when an adverse order is proposed. In Matcon Impex v. State Tax Officer, the Madras High Court set aside the order because the taxpayer requested personal hearing but the order was passed without granting it due to a portal error.

A CA must advise writ where the breach is clear on record.

6. Notice is vague or does not disclose material information

A taxpayer must get enough information to respond.

In M/s Boutique International Pvt Ltd, the Delhi High Court quashed reassessment because the Assessing Officer failed to provide details such as the bank account and deposit details which formed the basis of reopening. The matter was remanded with directions to supply details.

A CA must advise writ when the notice is so vague that the reply becomes impossible.

7. Faceless assessment breaches statutory scheme or minimum time requirement

Faceless assessment under Section 144B requires adherence to the prescribed procedure.

The Orissa High Court set aside an NFAC order because the assessee was not given the minimum response time of seven days as per the faceless SOP.

A CA should treat this as a writ ground because the defect is procedural and strikes at fairness.

8. Wrong service of notice despite updated email or details

Service defects can destroy the right to reply.

In the Mediacloud Studio Private Limited case, the Kerala High Court set aside an assessment where the show cause notice was sent to the old email even after the assessee updated the email on the e-filing portal.

A CA must advise writ where the record proves wrong service.

9. Coercive recovery starts while stay application is pending

Recovery issues often require urgent writ relief.

In the Cherian Koshy, the Kerala High Court stayed recovery proceedings till the disposal of the assessee’s stay petition.

This is a practical writ ground because the statutory appeal does not prevent coercive steps unless stay is granted.

10. Stay authority applies “20% deposit” as a fixed rule

CBDT Instruction No. 1914 and office memoranda guide stay decisions. They do not create a fixed 20% deposit rule.

The Madras High Court held that the CBDT instruction does not mandate 20% remittance as a rule and set aside the mechanical stay order for fresh decision.

A CA can advise writ when the stay rejection is mechanical and ignores prima facie case and hardship.

11. Refund is adjusted against a demand even after the demand is stayed

If the department adjusts refunds against a stayed demand, writ relief becomes a strong remedy.

In Nokia Solutions, the Delhi High Court held such adjustment unlawful and directed refund with interest.

This ground matters for corporates where refunds are large and cash flow is affected.

12. GST provisional attachment under Section 83 without safeguards

Section 83 attachment impacts business survival. Courts intervene when safeguards are not followed.

The Bombay High Court quashed provisional attachment because there was no written order under Section 83. The Delhi High Court also held that provisional attachment ceases after one year from the order date.

A CA must advise writ where attachment is illegal or continues beyond the statutory life.

13. Rule 86A negative blocking of Electronic Credit Ledger (GST)

Blocking of credit affects working capital. When Rule 86A is used beyond its scope, writ becomes appropriate.

In the Super Products case, the Supreme Court refused to interfere with the Allahabad High Court view on negative blocking under Rule 86A.

A CA can use this ground when credit is blocked without legal basis.

14. Parallel GST proceedings for the same period by different authorities

Two parallel proceedings for the same subject and period create jurisdiction conflict.

The Gauhati High Court held that two parallel proceedings for the same period are not permissible under the CGST framework.

A CA must advise writ because such parallel action is a jurisdiction dispute.

15. Vague GST SCN and retrospective cancellation

Where a GST show cause notice does not mention the default period, tax dues, or basis, it violates fairness.

The Delhi High Court set aside retrospective GST registration cancellation because the SCN did not specify the default period or dues.

This is a clean writ ground.

16. Extreme delay in adjudication of SCN and “call book” misuse (Customs)

In customs and excise, long delay in adjudication causes prejudice.

The Bombay High Court quashed a customs SCN after over 20 years and rejected the “call book” defence because the assessee was never informed.

A CA can advise writ when delay destroys fairness and the department has no valid explanation.

When writ is not the right advice

A CA must advise statutory appeal when the dispute needs evidence and fact-finding, or when the dispute is on merits and computation.

High Courts refuse writs in such cases. The Kerala High Court held that writ jurisdiction is not invoked against a GST SCN under Section 74 at the preliminary stage, except where there is a complete lack of jurisdiction.

A CA’s practical method before advising a writ

A CA must adopt a structured screening.

First, identify the statutory remedy and limitation. A writ strategy must not destroy the appeal remedy.

Second, isolate the writ ground in one sentence. Examples include “notice is time-barred”, “approval is invalid”, “reply ignored”, “no hearing”, “wrong service”.

Third, build a clean record. Writ cases are decided on documents and affidavits. Chronology, portal acknowledgements, email delivery proof, hearing requests, and the full notice and order must be ready.

Fourth, set clear prayers. Writ relief is quashing, remand, or direction to follow law. It is not recomputation of tax.

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