Wp/10894/2023 Of Pariyani Sethumadhavan v. Income Tax Officer

Digitally signedby VALLI MLocation: HIGHCOURT OFKARNATAKA NC: 2023:KHC:19530 WP No. 10894 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8 DAY OF JUNE, 2023 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV -WRIT PETITION NO. 10894 OF 2023 (TIT) BETWEEN: PARIYANI SETHUMADHAVAN, AGED ABOUT 66 YEARS, S/O M. SHIVASANKARAN NAIR, RESIDING AT: NO.55, 9TH A CROSS, GOKULA, 1ST STAGE, 1ST PHASE, BANGALORE - 560 054. PAN - …PETITIONER (BY SRI. BALRAM R RAO.,ADVOCATE) AND: INCOME TAX OFFICER, WARD NO.6(1)(1), BANGALORE, BMTC BUILDING, 80 FEET ROAD, KORAMANGALA, BANGALORE - 560 034. …RESPONDENT (BY SRI. E.I. SANMATHI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OR DIRECTION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA CALLING FOR THE RECORDS OF THE PETITIONER CASE AND AFTER EXAMINING THE LEGALITY AND VALIDITY THEREOF BE PLEASED TO QUASH AND SET ASIDE THE IMPUGNED NOTICE PASSED UNDER CLAUSE (B) OF SECTION 148A OF THE ACT DATED 23.03.2022 IN DIN AND NOTICE NO.ITBA/AST/F/148A(SCN) 2021-22/1041350910(1) (ANNEXURE-A) ORDER PASSED UNDER CLAUSE (D) OF SECTION 148A OF THE ACT DATED 30.03.2022 IN DIN AND NOTICE NO.ITBA/AST/F/148A/2021-22/1042192893 (1) ANNEXURE-B) AS WELL AS NOTICE ISSUED UNDER SECTION 148 OF THE ACT IN DIN AND NOTICE NO.ITBA/AST/S/148 1/2021-22/1042276110(1) (ANNEXURE-C) PASSED BY THE RESPONDENT FOR THE AY 2015-16 AND ETC,. THIS PETITION, COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner has called into question the correctness of the notice under Section 148A (b) of the Income Tax Act, 1961 (for short 'Act') at Annexure-A; order passed under Section 148A(d) of the Act, at Annexure-B; notice under Section 148 of the Act, at Annexure-C; and the order under Section 147 read with Section 144 of the Act, at Annexure-J; as well as notice of demand under Section 156 of the Act, at Annexure-K. 2. The primary contention of learned counsel for the petitioner is that the petitioner was not notified and communicated with the notice under Section 148A(b) of the Act and accordingly, the subsequent proceedings leading to the order under Section 148A(d) of the Act, requires to be set aside as being passed in violation of principles of natural justice. He submitted that though at a later stage, the petitioner has responded to the notice under Section 142(1) of the Act, dated 20.01.2023, however, it is submitted that the proceedings prior to the re-assessment proceedings conferred by virtue of Section 148A(b) and also order to be passed after considering the say of the petitioner under Section 148A(d) are procedural safeguards protecting substantive rights and unless such procedure is strictly followed, the question of looking into the validity of the proceedings subsequent to Section 142(1) of the Act does not arise. 3. In light of the contentions raised and the assertion that the notice under Section 148A(b) of the Act was not served, there is merit in the contention. The petitioner's right as conferred under Section 148A(b) of the Act culminating in an order under Section 148A(d) of the Act is a substantive right though appears to be procedural. It is only after compliance of the procedure required under Section 148A(b) of the Act and the order being passed after hearing the petitioner under Section 148A(d) of the Act, the question of re-opening of assessment would arise. 4. Accordingly, the order under Section 148A(d) of the Act at Annexure-B is set aside. Consequently, the notice under Section 148 of the Act at Annexure-C for the Assessment Year 2015-16 is set aside and the orders passed under Section 147 read with 144 of the Act at Annexure-J as well as the notice of demand at Annexure-K are set aside. 4. Accordingly, the order under Section 148A(d) of the Act at Annexure-B is set aside. Consequently, the notice under Section 148 of the Act at Annexure-C for the Assessment Year 2015-16 is set aside and the orders passed under Section 147 read with 144 of the Act at Annexure-J as well as the notice of demand at Annexure-K are set aside. The matter is remitted to the stage post notice under Section 148A(b) of the Act and the assessee is now required to file his objections to the notice under Section 148A(b) of the Act and the authority to consider and proceed further, in accordance with law. Accordingly, the petition is disposed off. Sd/- JUDGE MV List No.: 1 Sl No.: 24