Wp/101338/2021 Of Mallanagouda P Patil - Huf v. Income Tax Officer

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 12 DAY OF AUGUST, 2021 BEFORE THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR -WRIT PETITION NO.101338/2021 (TIT) BETWEEN MALLANAGOUDA P.PATIL (HUF) REP.BY KARTHA SRI MALLANAGOUDA P.PATIL, AGE. 52 YEARS, R/AT. NO.2/17/44/1, RAJHAMSA DIAGNOSTIC CENTRE, BEHIND SHIVA THEATER, BANNIGIDA CAMP, GANGAVATHI 583227, KOPPAL DIST. ... PETITIONER (BY SRI M.V.SESHACHALA, SENIOR COUNSEL FOR SRI J.M.GANGADHAR, ADVOCATE) AND 1. INCOME TAX OFFICER WARD 1, KOPPAL, SHIVABELAGU BUILDING, 1 FLOOR, MUNICIPALITY, NEAR PWD OFFICE, BESIDE HUDCO COLONY, HOSPET ROAD,KOPPAL-283231. WARD 1, KOPPAL, SHIVABELAGU BUILDING, 1 FLOOR, MUNICIPALITY, NEAR PWD OFFICE, BESIDE HUDCO COLONY, HOSPET ROAD,KOPPAL-283231. 2. ASSESSING OFFICER NATIONAL E ASSESSMENT CENTRE, NO.412, 413, 1 FLOOR, OPP. METRO PILLAR NO.793, DWARKA MOR, NEW DELHI-110059. ... RESPONDENTS (BY SRI Y.V.RAVIRAJ, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ASSESSMENT ORDER PASSED BY THE SECOND RESPONDENT BEARING NO.ITBA/AST/S/143(3)/2020-21/ 1030854844(1) DATED 22.02.2021 PRODUCED AS ANNEXURE-M AND REMAND THE MATTER BACK FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW BY GIVING AN OPPORTUNITY TO SUBSTANTIATE THEIR CLAIM AS PER THE SHOW CAUSE NOTICE PASSED BY R1 BEARING NO.ITBA/ AST/S/ 143(2)/ 2019-20/1018163176(1) DATED 22.09.2019 ANNEXURE-H IN ACCORDANCE WITH AGRICULTURAL PRACTICE PREVALENT IN SINDHANUR, KARNATAKA AND ETC. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT, MADE THE FOLLOWING: ORDER In this writ petition, petitioner seeks quashing of the impugned assessment order at Annexure-M dated 22.02.2021 passed by respondent No.2 and for other reliefs. 2.Heard Sri M.V.Seshachala, learned senior counsel for the petitioner and learned counsel for the respondents. Perused the material on record. 3.In addition to reiterating the various contentions put forth in the memorandum of writ petition and referring to the documents produced by the petitioner, learned senior counsel for petitioner invites my attention to the Central Government notification/scheme dated 12.09.2019 in order to contend that Clause-4 of the said notification/scheme contemplates a draft order to be prepared and forwarded to the petitioner/assessee prior to passing the impugned assessment order. It is also pointed out that the procedure for preparing draft award and to proceed further in the matter is also provided under Clause-5 of the said scheme/notification. In this context, it is pointed out that a perusal of the impugned assessment order at Annexure-M will clearly indicate that the mandatory procedure prescribed in the aforesaid Central Government notification/scheme has not been followed prior to passing the impugned order and consequently the impugned order is vitiated and same deserves to be quashed on this ground alone. 4.Per contra, learned counsel for respondents submits that in view of availability of equally efficacious alternative remedy in favour of the petitioner by way of appeal under Section 246 of the Income Tax Act, 1961, present petition is not maintainable. He submits that there is no merit in the petition and same is liable to be dismissed. 5.As rightly contended by learned senior counsel for the petitioner, a perusal of the material on record including the impugned order will indicate that the mandatory procedure prescribed under the said scheme/notification dated 12.09.2019 has not been followed and consequently, the impugned order is vitiated and deserves to be quashed on this ground alone. 6.It is also relevant to state that though the impugned order was passed on 22.02.2021 prior to 01.04.2021 when Section 144-B was inserted by way of amendment to the said Act, 1961 whereby the said 5.As rightly contended by learned senior counsel for the petitioner, a perusal of the material on record including the impugned order will indicate that the mandatory procedure prescribed under the said scheme/notification dated 12.09.2019 has not been followed and consequently, the impugned order is vitiated and deserves to be quashed on this ground alone. 6.It is also relevant to state that though the impugned order was passed on 22.02.2021 prior to 01.04.2021 when Section 144-B was inserted by way of amendment to the said Act, 1961 whereby the said notification/scheme dated 12.09.2019 was given statutory recognition/force having regard to the fact that the impugned order deserves to be set aside and the matter remitted back to the respondent No.2 for reconsideration afresh, it is necessary to direct the 2[nd] respondent to reconsider the matter afresh in accordance with Section 144-B of the said Act, 1961 which is in force as on date. 7.Insofar as contention of the respondents regarding maintainability of this petition on account of availability of equally efficacious remedy of appeal is concerned, having regard to the fact that the impugned order is in violation of the prescribed mandatory provisions contained in the said notification/scheme, mere availability of alternative remedy by way of appeal will not come in the way of this Court entertaining the present petition. 8.As rightly contended by learned senior counsel for the petitioner, a perusal of the assessment order at Annexure-M will clearly indicate that the mandatory procedure prescribed in Clause-4 and Clause-5 of the aforesaid notification/scheme dated 12.09.2019 has not been followed prior to passing the impugned order and consequently without expressing any opinion on the merits/demerits of the rival contentions, in the face of the mandatory procedural irregularities and lapses contained in the impugned order, I deem it just and appropriate to set aside the impugned order and remit the matter back to the 2[nd] respondent for reconsideration afresh in accordance with law. 9.In the result, I pass the following: ORDER i.The petition is allowed. ii.Impugned assessment order at Annexure-M dated 22.02.2021 is hereby set aside and the matter is remitted back to respondent No.2 for reconsideration afresh in accordance with law bearing in mind the CLK observations made in this order and Section 144-B of the Income Tax Act, 1961 after notifying the petitioner and hearing him and affording sufficient and reasonable opportunity to the petitioner. iii.All rival contentions are kept open and no opinion is expressed on the same. SD JUDGE