India v. Ashish Agarwal Tn Civil Appeal

Digitally signed by BKMAHENDRAKUMARLocation: High Courtof Karnataka -|- NC: 2023:KHC:21795WP No. 11/790 of 202 IN THE HIGH COURT OF KARNATAKA AT BENGALURU| DATED THIS THE 23 DAY OF JUNE, 2023 BEFORE THE HON 'BLE MR JUSTICE S SUNIL DUTT YADAV'WRIT PETITION NO. 11790 OF 2023 (TIT BETWEEN: SRI. AJEETH.S/O. LATE A.P. GIRIVASANAGED 44 YEARSR/AT. NO.100, RAMESH NIVAS|17 CROSS, RAMAMURTHY NAGARBENGALURU - 560 016 PETITIONER (BY SRI: MV. SHESHACHALA SR, ADV.,SRI: ARAVIND V CHAVAN, ADVOCATE) |SRI: ARAVIND V CHAVAN, ADVOCATE) | AND: 1.ASSESSING OFFICERINCOME TAX OFFICER|NATIONAL E ASSESSMENT CENTRE.NO.412-413, 1 FLOOROPP. METRO PILLAR NO. 7/93DWARKA MOR|NEW DELHI - 110 059. 2DEPUTY COMMISSIONER OF |INCOME TAX, CIRCLE - 4(1)(1)BMTC BUILDING80 FEET ROAD, KORAMANGALABENGALURU - 560 O95. 3.0PRINCIPAL COMMISSIONER OFINCOME TAX-4BMTC BUILDING80 FEET ROAD, KORAMANGALABENGALURU - 560 O95. . RESPONDENTS (BY SRI: E.I. SANMATHI, ADVOCATE) -7- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 2277OF THE CONSTITUTION OF INDIA PRAYING TO - QUASH THEASSESSMENTORDER,DATED17.05.2023.BEARINGO.ITBA/AST/S/147/2023-24/10529116/76(1) ANNEXURE-H3 PASSEDBYRESPONDENTNO, 1FORASSESSMENTYEAR|2015-16;CONSEQUENTLY QUASH THE ORDER DATED 26.07.2022 ANNEXURE-E3 PASSED UNDER SECTION 148A OF THE IT ACI BEARINGNO.ITBA/COM/F/17/2022-23/1044110/62(1).PASSED|BYRESPONDENT NO.2 AS IT IS CONTRARY TO THE LAW DECLARED BY.THE HON BLE SUPREME COURT IN ASHISH AGARWAL (SUPRA) AND-EITC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,|THE COURT PASSED THE FOLLOWING: ORDER The petitioner has sougnt for issuance of writ of certiorari.to quasn the assessment order at Annexure-H3 dated.17.05.2023 and also sought for setting aside of order at.Annexure-E3. 2.|Learned Senior Counsel Shri M V Snesnachala for|tne petitioner submits that Section 148 notice at Annexure-E1dated 26.07.2022 is required to be construed as 148A(bD) noticein terms of the judgment of the Hon bie Apex Court inUnion of India Vs Ashish Agarwal tn Civil Appeal No.3005 of 2022. It is submitted that the procedure then to the followed in terms.of the amended provision and the cognate provision under,Section 148 would be that the petitioner is granted opportunity|to file his objections to 148A(b) notice, after which, order under| -3- NC: 2023:KHC:21795WP No. 11/790 of 202 148A(d) may be passed accepting the explanation of the.petitioner and dropping of the proceedings or passing of the.order otherwise wnile proceeding to issue notice under 148. It.is further submitted that this process though procedural must|be construed as conferring substantive right on the petitioner|assessee since if any grounds are made out in the reply to thenotice under 148A(b) and the assessee is successful in.convincing the authority, the proceedings itself may come to anend. 4 |It is pointed out that notice 148 was dated.26.07.2022 and the order under 148A(d) came to be passed on.the same date itself.It is clear that no opportunity wasgranted to the petitioner to make out reply before passing|148A(d) order. Accordingly, on this sole ground, the order|under 148A(d) at Annexure-E3 is set aside and the matter is.remanded to the stage, post notice at Annexure-E1. 5.|The petitioner to file nis objection to the notice atAnnexure-El and the respondents to proceed further in.accordance witn law. | All the contentions are kept open. NC: 2023:KHC:21795WP No. 11/790 of 202 Accordingly, the petition is.disposed off. Tne order at Annexure-H3 is set aside as consequentialrelief of 148A(d) order having been set aside. Sd/-|JUDGE| *pgn/-|