Joint Commissioner of Income Tax and Others vs Dell India Pvt. Ltd.

Vineet Saran, J.—Challenging the notice issued under section 148 of the Income Tax Act as well as reopening of assessment for the assessment year 2009-10 of the respondent company, respondent had filed WP 8901/2015. By judgment and order dated 23.3.2015, writ petition filed by the respondent company was dismissed on merits but the question of maintainability of the writ petition was decided in favour of the respondent/writ petitioner and against the Revenue. Challenging the latter part of the judgment dated 23.3.2015 passed in WP 8901/2015, this intra court appeal has been filed.

Having heard Sri K V Aravind, learned counsel for the appellant as well as Sri Percy Pardiwalla, learned senior counsel along with Sri T Suryanarayana, learned counsel for the respondent company, we are of the opinion that there is no merit in this appeal. We say so as the learned Single Judge has not accepted the contention of the Department on the ground that "in a catena of judgments, this court as well as the Hon''ble Apex Court has held that exercise of extraordinary jurisdiction is available where the petitioner assails action of the authorities on the following grounds:

"i) without jurisdiction

ii) violation of principles of natural justice

iii) without authority of law

iv) validity or vires of the statutory provision being under challenge."

This view is also fortified by law laid down by Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, . In fact the Division Bench of this Court in the case of T.T. Pvt. Ltd. Vs. Income Tax Officer, Company Circle-III, Bangalore, has held that availability of alternate remedy under the Act would not be a bar for this Court to examine the notice issued under section 148 of the Income Tax Act, 1961, if it is challenged on the ground of jurisdictional error. In that view of the matter, the contention raised by Sri K V Aravind cannot be accepted with regard to maintainability of the writ petition and same stands rejected."

The Division Bench of this Court in the case of N Govindaraju v. Income Tax Officer - ITA 504/2013 decided on 1.7.2015, has held that the notice under section 148 is justiciable, meaning thereby that the same can be challenged independently. The merits of the case have been considered by the writ court which is subject matter of appeal separately.

In the facts of the present case, where the jurisdiction of issuance of notice under section 148 of the Income Tax Act was itself under challenge, we are of the opinion that the learned Single Judge has rightly held that the writ petition, in the said circumstances, would be maintainable. No interference is called for with such part of the order of the writ court challenged in this appeal.

Appeal is accordingly, dismissed.