The challenge to a notice and order for reopening of assessment is maintainable when there is no statutory remedy available under the Act. Non-supply of material forming the basis for reopening the assessment renders the proceedings illegal and void.

ORDER :

Pankaj Mithal, J.

1. Petitioner is a private limited company engaged in manufacturing of marble slabs and tiles. It filed its income tax return for the assessment year 2017-2018 and the same was processed under Section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) and an intimation regarding acceptance of ‘nil’ tax liability was issued to it on 22.06.2018 by the Centralized Processing Centre of the Income Tax Department.

2. The petitioner received a notice dated 30.03.2021 under Section 148 of the Act for reopening of its assessment for the year 2017-2018 on the ground that there are reasons to believe that its income for the relevant year has escaped assessment.

3. On petitioner’s request, it was supplied with the reasons for issuing the said notice vide letter dated 24.05.2021. The said reasons stated that the petitioner had received bogus loan/sale/purchase amount of Rs.93,21,520/- (Rs.89,97,520+ Rs.3,24,000) from M/s. Sanmati Gems Private Limited as per the information received from the Deputy Director of Income Tax, Investigation, Unit-4(4), Mumbai.

4. The petitioner on receipt of the above reasons for reopening its case under Section 148 of the Act filed objections on 09.06.2021 stating that the revenue is proposing to reopen its case not for reason to believe but for reason to suspect. The petitioner also contended that it has not been provided with the necessary documents such as the account books of M/s. Sanmatri Gems Private Limited showing the alleged bogus entries in its name or the statement of Deepak Jain purported to have been recorded under Section 132(4) of the Act. The said objections were disposed of vide order dated 18.08.2021 holding that the same have no force.

5. It is in the above backdrop that the petitioner invoked the writ jurisdiction of this Court for the purposes of quashing of the notice dated 30.03.2021 issued under Section 148 of the Act and the order dated 18.08.2021 by which its objections against the said notice were disposed of.

6. The writ petition was entertained by the High Court and vide order dated 30.03.2022, it was provided that if in respect of the assessment year 2017-2018 any reassessment order is or has been passed, the same shall remain subject to outcome of the writ petition.

7. The petitioner was furnished with the re-assessment order dated 29.03.2022 pursuant to the notice under Section 148 of the Act. Accordingly, the petitioner questioned the said assessment order by seeking necessary amendment in the writ petition which was duly allowed. Thus, in the writ petition the challenge is not only to the notice under Section 148 of the Act or the order disposing of the objections of the petitioner, but also to the reassessment order dated 29.03.2022.

8. Shri Kamal Kishore Bissa, learned counsel for the revenue has raised a preliminary objection that against the re-assessment order the petitioner has a statutory remedy of appeal under the Act. Therefore, the writ petition is not maintainable and that the challenge to the notice under Section 148 of the Act is now meaningless in view of the re-assessment order. He has relied upon the decision rendered in Commissioner of Income Tax & Ors. vs. Chhabil Dass Agarwal [(2014) 1 SCC 603] wherein it has been held that the Act provides for a complete machinery for assessment/re-assessment of tax and for the scrutiny thereof by means of appeal. Therefore the assessee is not supposed to surpass the mechanism provided thereunder and to invoke the extra-ordinary jurisdiction of the High Court, if no exceptional ground exists for invoking such a power.

9. It is true that where a statutory remedy is provided under the Act itself more particularly in matters of tax, the assessee is not supposed to jump the said remedy and invoke the writ jurisdiction of the Court. In the case at hand, no doubt the petitioner has assailed the re-assessment order also by getting the writ petition amended but the thrust of its challenge is to