Brief of the case:
The Hon’ble Bombay HC in the above cited case held that when assessee participated in reassessment proceedings by furnishing the required documents and challenges the reopening subsequently before the high court by filing a writ petition then it would be not be appropriate for the high court to exercise its exclusive jurisdiction because the assessee has already chosen AO to exercise jurisdiction in the matter and to challenge his order before the appropriate appellate forum provided under the Act.
Facts of the case:
- AO issued a notice dated 30th March, 2015 under Section 148 of the Act to reopen the assessment for AY 2008-09 u/s 148.Assessee was asked to file a Return of Income in the prescribed form for the subject assessment year within 30 days of the service of the notice. The petitioner admittedly filed its
- Return of Income only on 29th December, 2015 for the subject assessment year and sought reasons recorded by the Assessing Officer in support of the notice issued u/s 148.
- On 4th January, 2016, the Assessing Officer furnished to the petitioner reasons recorded while issuing the impugned notice dated 30th March, 2015.On 14th Jan,2016 , the petitioners submitted the details called for by the Assessing Officer but pointed out that the information is being submitted subject to the objections to the impugned notice which would be filed by it.
- On 22nd January, 2016 the petitioners filed its objections to the reasons recorded in support of the impugned notice. On 25th January, 2016, the Assessing Officer disposed of the objections to the reasons recorded in support of the impugned notice. The reopening thereafter was challenged by filling writ petition before Bombay HC.
- At the instance of the petitioners ad interim relief was granted by high court staying the impugned notice dated 30th March, 2015.
Contention of the Assessee:
It was submitted that furnishing the information to AO was without prejudice to its objections to the reasons which were to be filed in due course. Thus, there was no participation in proceedings before the Assessing Officer and it is open for the assessee to challenge the reopening before High court by filling writ petition instead of contesting the same before the CIT(Appeals).
Contention of the Revenue:
Revenue objected that as the petitioner has participated in proceedings before the Assessing Officer in respect of the impugned notice, this Court should not exercise its extraordinary writ jurisdiction in favour of the petitioners. Because it is not open for the assessee to challenge the reopening parallel before the appellate authorities as well as before high court.
Held by Hon’ble High Court:
- HC observed that it would exercise its jurisdiction under Article 226 only when it is of the view that interest of justice would require its exercise.
- The provisions under Section 147 and 148 of the Act empowers the Assessing Officer to issue a reopening notice, subject to satisfaction of the parameters set out therein. It is open to the assessee to challenge the order of the Assessing Officer under the Act on the ground that the conditions precedent for its exercise are not satisfied. Assessee can challenge the notice u/s 148 either by challenging it under Article 226 of the Constitution of India or by challenging it before the authorities under the Act.
- In this case, the petitioners have filed detailed information called for by the Assessing Officer under Section 142(1) and 143(2) of the Act and thus participated in the assessment proceedings. Thus, the petitioner has chosen to submit itself to jurisdiction of AO and the objections to the reasons are made in the course of reassessment proceedings. The petitioners in this case having participated in the proceedings, do not deserve this court’s exercising of extraordinary jurisdiction under Article 226 of the Constitution of India. The petitioner is not without alternative remedy .It has an effective alternative remedy available under the Act. All contentions left open to be urged before the Authorities.
- It would be completely different scenario where the petitioners have not participated in the proceedings before the Assessing Officer and object to exercise of jurisdiction by the Assessing Officer at the very threshold and not while participating in the reassessment proceedings.
- This not being the case the petition deserved to be dismissed.