Wp/103320/2024 Of Kottiahgal Yariswamy v. Income Tax Officer

Digitally signed byASHPAKKASHIMSAMALAGALADINNIASHPAKKASHIMSAMALAGALADINNILocation: HIGHCOURT OFKARNATAKADHARWADBENCHDate: 2024.07.1012:25:32 +0530 NC: 2024:KHC-D:8749 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27 DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR -WRIT PETITION NO.103320 OF 2024 (TIT) BETWEEN: KOTTIAHGAL YARISWAMY, AGE: 57 YEARS, PROPRIETOR: HIMALAYA KISSAN SEVA KENDRA, TOOLAHALLI ROAD, UJJINI-583136. … PETITIONER (BY SRI RAVI SHANKAR S.V. AND SRI SHASHANK S. HEGDE, ADVOCATES) AND: 1. INCOME TAX OFFICER, WARD NO-1 AND TPS, AYAKAR BHAVAN, M.J. NAGAR, 1 CROSS, DAM ROAD, HOSAPETE, KARNATAKA-583203. M.J. NAGAR, 1 CROSS, DAM ROAD, HOSAPETE, KARNATAKA-583203. 2. NATIONAL FACELESS ASSESSMENT CENTRE, ADDITIONAL/JOINT/DEPUTY/ ADDITIONAL/JOINT/DEPUTY/ ASSISTANT COMMISSIONER OF INCOME TAX/ INCOME TAX OFFICER, INCOME TAX DEPARTMENT, MINISTRY OF FINANCE, ROOM NO.401, 2 FLOOR, E-RAMP, JAWAHARLAL NEHRU STADIUM, DELHI-110003. INCOME TAX OFFICER, INCOME TAX DEPARTMENT, MINISTRY OF FINANCE, ROOM NO.401, 2 FLOOR, E-RAMP, JAWAHARLAL NEHRU STADIUM, DELHI-110003. 3. THE PRINCIPAL COMMISSIONER OF INCOME TAX-HUBLI, C.R. BUILDING, NAVANAGAR, HUBBALLI, KARNATAKA-580025. … RESPONDENTS (BY SRI M. TIRUMALESH AND SMT. ROOPA ANAVEKAR, ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR DIRECTION IN THE NATURE OF A WRIT OF CERTIORARI QUASHING THE NOTICE UNDER SECTION 148A(b) OF THE ACT, DATED 14/02/2023 BEARING DIN NO. ITBA/AST/F/148A(SCN)/2022-23/1049724124(1), ISSUED BY THE RESPONDENT NO.1 FOR THE ASSESSMENT YEAR 2019-20 HEREIN MARKED AS ANNEXURE-A AND ETC. THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER 1.Heard learned counsel for the petitioner and respondents. 2.The present petition is filed seeking to quash the notice issued under Sections 148A(b) and 148A(d) of the Income Tax Act, 1961 (for short the Act) and other notices issued by respondent Nos. 1 and 2 and also the approval order passed under Section 151 of the Act, by the respondent No.3 in pursuance to notices issued under Section 148 of the Act. 3.Petitioner is an individual, running a petrol pump business and purchases fuel from the Indian Oil Corporation Ltd., which is retailed to the public. The petitioner also owns a truck for easy procurement of fuel and the truck, which leads to the Indian Oil Corporation Ltd., to which he receives contract receipts towards leasing of the trucks, which is reflecting in the Form No.26AS. - 3 - 4.The petitioner not filed his returns of income for the assessment year 2019-2020 dueto inadvertence, hence, respondent No.1 issued notice under Section 148A(b) of the Act on 14.02.2023. For the reason stated therein in the notice, respondent No.3 passed an order after obtaining unsigned approval under Section 151 of the Act, as it was a fit case for issuance of the notice under Section 148 of the Act. Therefore, respondent No.1 issued notice for proposing to reassess the income and re-compute the loss or depreciation allowances or any other allowances or deductions requiring the petitioner to furnish income tax returns in response to the same. 5.It is the case of the petitioner that it was unaware of the notices issued until completion of penalty proceedings as the petitioner’s personal email ID which was uploaded in the filing portal in the form of ‘ ’ and which was updated on 30.11.2022 and the notices were issued by respondent under Section 148A(b) of the Act is on 14.02.2023. Therefore, it is the contention of the learned counsel for the petitioner that despite him uploading in the filing portal about the changed e-mail address, he was not notified on the present e-mail address, while issuing the notice under Section 148 of 5.It is the case of the petitioner that it was unaware of the notices issued until completion of penalty proceedings as the petitioner’s personal email ID which was uploaded in the filing portal in the form of ‘ ’ and which was updated on 30.11.2022 and the notices were issued by respondent under Section 148A(b) of the Act is on 14.02.2023. Therefore, it is the contention of the learned counsel for the petitioner that despite him uploading in the filing portal about the changed e-mail address, he was not notified on the present e-mail address, while issuing the notice under Section 148 of the Act, so also the orders that were passed subsequent to the said notice. Therefore, the petitioner was totally kept in dark and un-aware of the proceedings, he could not participate. Hence, he is before this Court on the ground that no proper opportunity was provided in view of the notices not issued to the petitioner to the e-mail that was uploaded prior to the issuance of notices. On these grounds, he seeks interference in the hands of this Court to quash the order and remit the matter for fresh assessment by accepting the changed e-mail ID in the filing portal by providing opportunity and re-assess the computation for payment of tax. 6.Per contra, learned counsel for respondents vehemently contends that the contention so raised would not be accepted for the reason that, in the notices issued to the petitioner, the e-mail is notified as ‘ ’, who was earlier listed in the web portal of respondents. It is also the duty of the petitioner to have checked on the said person whether he is the petitioner himself or tax auditor, who should have communicated the same to the petitioner and he should have replied to the notice as that was the existing mail, which is also reflected in the change of e-mail produced by the petitioner. Learned counsel sustains the order passed on the ground that there is no illegality, perversity or arbitrariness in issuance of show cause notice and the order passed thereafter. 7.Having heard learned counsel for both the parties, apparently it is clear from the document produced at Annexure-B, dated 30.11.2022 that the petitioner has uploaded his change in e-mail address in the filing portal of the respondents. The show cause notice admittedly was issued on 14.2.2023, which is much later i.e. again issued to e-mail address of one ‘ ’, thereby not showing the correct e-mail. ID of the petitioner, which was uploaded in the filing portal. Hence, the Email ID of the petitioner’ which was uploaded in the filing portal was not issued any notice. Hence, the submissions put forth by the counsel for the petitioner has sufficient force that, as on date of issuance of notices, the notices were not sent to the email address of the petitioner for him to respond and reply and participate in the proceedings. 8.Under the circumstances, It is fundamental principle of law that notice and an opportunity of hearing is to be given to assessee to controvert or participate, or show cause as to why any action that is initiated by the respondents should be sustained or not. 9.Under the circumstances, the petition requires to be allowed. Hence, I pass the following: ORDER i)The Petition is allowed. 8.Under the circumstances, It is fundamental principle of law that notice and an opportunity of hearing is to be given to assessee to controvert or participate, or show cause as to why any action that is initiated by the respondents should be sustained or not. 9.Under the circumstances, the petition requires to be allowed. Hence, I pass the following: ORDER i)The Petition is allowed. ii)The impugned order dated 21.03.2023, passed by respondent No.1 at Annexure-A1, impugned order dated 21.03.2023, issued by respondent No.1 at Annexure-A2, impugned order dated 10.03.2024, issued by respondent No.2 at Annexure-A3, impugned order dated 10.03.2024, issued by respondent No.2 at Annexure-A4, impugned order dated 10.03.2024, issued by respondent No.2 at Annexure-A5 and impugned order dated 10.03.2024, issued by respondent No.3 at Annexure-A6 are hereby quashed. respondent No.1 at Annexure-A1, impugned order dated 21.03.2023, issued by respondent No.1 at Annexure-A2, impugned order dated 10.03.2024, issued by respondent No.2 at Annexure-A3, impugned order dated 10.03.2024, issued by respondent No.2 at Annexure-A4, impugned order dated 10.03.2024, issued by respondent No.2 at Annexure-A5 and impugned order dated 10.03.2024, issued by respondent No.3 at Annexure-A6 are hereby quashed. iii)The order of approval order under Section 151 of the Act, dated 20.3.2023, issued by the respondent No.3 for the assessment year 2019-2020 vide Annexure-A7 is also quashed. Act, dated 20.3.2023, issued by the respondent No.3 for the assessment year 2019-2020 vide Annexure-A7 is also quashed. iv)In view of the above said order, the petitioner shall be provided an opportunity of hearing and participate in the provided an opportunity of hearing and participate in the show cause notice issued by the respondents vide Annexure-A, within four weeks from the date of receipt of copy of this order. Annexure-A, within four weeks from the date of receipt of copy of this order. v)The respondents shall also take into consideration the change of Email ID that is furnished by the petitioner vide Annexure-B in it’s portal for issuance of notice thereafter. change of Email ID that is furnished by the petitioner vide Annexure-B in it’s portal for issuance of notice thereafter. Sd/- JUDGE