By Shri v. Sheshachala, Sr. Advocatefor Shri Gangadhar Jm Andpraveen P. Tarikar, Advocates

IN THE HIGH COURT OF KARNATAKA,DHARWAD BENCH DATED THIS THE 16 DAY OF MARCH, 2017 BEFORE THE HON BLE MR. JUSTICE L. NARAYANA SWAMY .WRIT PETITION NO.104162 OF 2015 (TIT) BETWEEN VISHWANATH SUGAR ANDSTEEL INDUSTRIES LIMITED,(NOW CALLED AS VISHWARAJ SUGARINDUSTRIES LTD.,),HAVING REGISTERED OFFICE ATBELLAD BAGEWADI,HUKKERI TALUK,BELAGAVI DISTRICT.REPRESENTED BY ITSEXECUTIVE DIRECTOR,MR. MUKESH KUMAR. ... PETITIONER (By SHRI V. SHESHACHALA, SR. ADVOCATEFOR SHRI GANGADHAR JM ANDPRAVEEN P. TARIKAR, ADVOCATES) AND 1.THE JOINT COMMISSIONER OF INCOME TAXRANGE-1, BELAGAVI.OPPOSITE TO CIVIL HOSPITAL,DR. AMBEDKAR ROAD, BELAGAVI. 2.THE PRINCIPAL,COMMISSIONER OF INCOME TAXRANGE-1, BELAGAVI.OPPOSITE TO CIVIL HOSPITAL,DR. AMBEDKAR ROAD,BELAGAVI.COMMISSIONER OF INCOME TAXRANGE-1, BELAGAVI.OPPOSITE TO CIVIL HOSPITAL,DR. AMBEDKAR ROAD,BELAGAVI. 3.THE INCOME TAX OFFICER (HQ),OPPOSITE TO CIVIL HOSPITAL,DR. AMBEDKAR ROAD,BELAGAVI.OPPOSITE TO CIVIL HOSPITAL,DR. AMBEDKAR ROAD,BELAGAVI. ... RESPONDENTS (By SHRI Y V RAVIRAJ, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND22/7 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THIMPUGNED ORDER DATED 27.03.7015 AS PER ANNEXURE-AISSUED BY THE 1S7—7T— RESPONDENT AND ORDER D27.03.7015 ISSUED BY THE 3RD RESPONDENT ON BEHALF OF2ND RESPONDENT AS PER ANNEXRUE-B.; DIRECT THE 1STRESPONDENT TO ACCEPT THE RETURNS FILED BY THEPETITIONER FOR THE ASSESSMENT 2012-13; AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARYHEARING IN ‘B’ GROUP, THIS COURT, MADE THE FOLLOWING: ORDER Petitioner in this petition is cnallenging the validity of theorder passed under Section 142(2A) of the Income Tax Act,1961 (for brevity hereinafter referred to as ‘the Act’). Thegrounds urged are tnat while issuing the said order, as required under proviso to Section 142(2A) of the Act, reasonableOpportunity snould nave been given to the petitioner. Withoutcomplying with the said provision, the respondents nave issuednotice on 20[.3]Marcn 2015 directing the petitioner to appear on23[2;]March 2015, i.e. within two days from the date of issuanceof notice. It would be practically impossible for the petitioner toanswer or to prepare, since issue involved is of complex nature.The object of issuance of notice is to provide a reasonableopportunity and not just an opportunity by providing time to thepetitioner to appear within three days from the date of issuanceof the notice. Hence, the learned counsel submits to set asidetne Notice Annexure-AC dated 20[tn|]March 2015 and passappropriate order directing the respondents to provide areasonable opportunity to the petitioner as provided underproviso to Section 142(2A) of the Act. The learned counsel forthe petitioner places reliance on the judgment of Hon'bleSupreme Court in the case of SAHARA INDIA (FIRM) v.COMMISSIONER OF INCOME TAX AND ANOTHER reported in(2008) 300 ITR 403 and refers to paragraph 23 and 24 of thejudgment. 2. The learned counsel appearing for the respondent-|Revenue submits to dismiss the petition. He submits thatthougn by notice dated 20[.3]March 2015 the petitioner wasdirected to appear on 23[2;]Marcn 2015, but on the request madeby the petitioner, on the said date, the petitioner was providedfurtner time till 26[.3]Marcn 2015. On 26[.3]Marcn 2015, thepetitioner sought further time and the same was rejected.Hence, the impugned order Annexure-A cannot be said to be inerror. 2. The learned counsel appearing for the respondent-|Revenue submits to dismiss the petition. He submits thatthougn by notice dated 20[.3]March 2015 the petitioner wasdirected to appear on 23[2;]Marcn 2015, but on the request madeby the petitioner, on the said date, the petitioner was providedfurtner time till 26[.3]Marcn 2015. On 26[.3]Marcn 2015, thepetitioner sought further time and the same was rejected.Hence, the impugned order Annexure-A cannot be said to be inerror. 3. Heard the learned counsel for the parties. In the lightof the submissions made by the learned counsel for thepetitioner, 1 have gone through the proviso to Section 142(2A)of the Act. The proviso very clearly states that the AssessingOfficer shall not direct the assessee to get the accounts soaudited unless the assessee has been given a reasonableopportunity of being heard. Here, the emphasis is to be givenon the words “reasonable opportunity”. The requirement of lawis not to provide just an opportunity, but it snould be areasonable opportunity and the reasonableness depends upon case to case. The multiplicity or complexity of the case dependsupon the duration of time to be provided to the party from thedate of issuance of notice. In the instant case, the noticeAnnexure-AC issued to the petitioner on 20[.3]Marcn 2015 askingto appear on 23[2;]March 2015. In that case, the petitioner is leftwith only two days for preparing itself for answer. Since, 20[.3]Marcn 2O15 ts the date on whnichn tne communication addressand the petitioner to report before the respondent on 23[2;]Marcn,2015, the petitioner was left with only two days, i.e. 21[4.]andiwy[1;]March, 2015 to get itself prepared. That cannot be said tobe a reasonable opportunity that is provided to the petitioner, asit is stated by the petitioner that the matter is of complex natureand it would be reasonable on behalf of the respondent to grantsome more time. The Hon'ble Supreme Court in the case ofSAHARA INDIA (supra) has observed that an order under Section142(2A) of the Act entail civil consequences, even after theobligation to pay auditor’s fees and incidental expenses has beentaken over by the Central Government, and therefore the rule ofaudi alteram partem,is required to be observed and asessee hasto be provided a reasonable opportunity of being heard. In the light of the above judgment, it is very clear that unless theaggrieved party is provided fullest opportunity in compliance ofprincipleaudi alteram partem, It would not make the fullestopportunity as provided under Section 142(2A) of the Act.Though proviso is silent about reasonable opportunity, it refersopportunity to pbotn the petitioner as well as tne respondentdepending upon the complexity of the cases to. providreasonable opportunity. Reasonable opportunity is to beexercised by the respondent depending upon the case and alsoon the basis of the request made by the party considering theabove aspect. 4. In the case on hand, I feel what has been given to thepetitioner is contrary to the principles of aual alteram partemand has not followed the _ principles of natural justicAccordingly, Annexure-A dated 27[.3]Marcn 2O1L5 and Annexure-AC dated 20[.3]Marcn JOLS5 are liable to pe set aside ana areaccordingly set aside. It is further directed that the Notice dated20[.3]March 2016 is restored to file. Petitioner is directed toappear before the respondent on 28[.3]Marcn, 2017, without waiting for any notice in this regard. It is made clear that incase if the limitation comes into picture, it is for the petitioner tomake an application; and the respondent is directed to passappropriate orders. Petition accordingly stands disposed of. Sd/-JUDGE