The availability of an alternative statutory remedy does not create an absolute bar to the maintainability of a writ petition under the Constitution. High Courts retain the discretionary power to exercise plenary writ jurisdiction, especially when the matter involves jurisdictional issues or pure questions of law.

ORDER :

Meenakshi Madan Rai, J.

1. The Respondent has filed the instant petition raising preliminary objections on the maintainability of the Writ Petition. Learned Deputy Solicitor General of India (DSGI) appearing for the Objector-Respondent, submits that, the Writ Petitioner is debarred from invoking the writ jurisdiction of this High Court when an efficacious alternative remedy is available by way of statutory provisions, which the Writ Petitioner has failed to invoke, but has instead approached the High Court. It is contended that on receiving the information of income having escaped assessment within the meaning of Section 147 of the Income Tax Act, 1961 (IT Act), based on the objections raised by the Revenue Audit, Notice under Section 148A(b) of the IT Act dated 19-03-2022 was issued to the Writ Petitioner on three issues, namely, (a) under charge of deemed income under Section 115JC in relation to donation claimed under Section 80GC of the IT Act. (b) under determination of Book Profit and escapement of income in respect of Excise Duty refund of Rs. 22,99,92,702/-. (c) under charge of income of Rs. 22,99,92,702/- by claiming Excise Duty refund as Capital Receipt. The Writ Petitioner responded vide communication, dated 26-03-2022, after which the Order under Section 148A(d) was passed by the Respondent on 27- 04-2022 discussing and summarising the findings on the above issues. That, as the Writ Petitioner sought redressal of its grievances against the Assessment Order, it was imperative that they approach the Commissioner of Income Tax (Appeals) under Section 246A(1)(b) in the first instance. Pursuant thereto, if further aggrieved by the Order of the Appellate Authority, Section 253 of the IT Act provides for redressal of grievances to the Income Tax Appellate Tribunal. The Writ Petitioner has however without exhausting the alternative remedies filed the instant Writ Petition which therefore is not maintainable in the eyes of law. To fortify her submissions, Learned DSGI drew strength from the decision of the Supreme Court in Anshul Jain vs. Principal Commissioner of Income Tax and Another , [2022] 143 taxmann.com 38 (SC) : 2022 SCC OnLine SC 1756

2. Resisting the arguments advanced by the Learned DSGI, Learned Counsel for the Writ Petitioner contended that, the IT Act makes no provision for approaching the statutory machinery in an order under Section 148A(d) of the IT Act. It was next contended that, when the re-assessment was made, it was without jurisdiction, hence the Writ Petitioner is well within his rights to approach the High Court by invoking the provisions of Articles 226/227 of the Constitution of India instead of awaiting prolonged litigation and its completion before the statutory authorities. It was further canvassed that the Order of the Tax Authority dated 27-04-2022 is wholly without jurisdiction as the Notice was issued in violation of the period of limitation prescribed in Section 149 of the IT Act.

(i) Inviting the attention of this Court to the contents of Section 148 of the IT Act it was argued that several conditions have been prescribed therein for issuance of Notice. Notice to the Writ Petitioner could not be contemplated under the prescribed conditions.

(ii) The Explanation to Section 149 of the IT Act requires that for the purposes of (1)(b) “asset” shall include immovable property being land, building or both, shares