Wp/14833/2018 Of Shri M A Zahid v. Assistant Commissioner Of Income Tax (Osd)

IN THR HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THER 1 DAY OF OCTOBER, 2019 BEFORE: THR HON’BLE MRS. JUSTICK S.SUJATHA W.P.Nos.14833 & 15147'15148/2018 (TIT) BETWEEN: SHRI M.A.ZAHID |S/O LATE M.ABDUL RAHIM,AGED ABOUT 54 YEARS,R/O ELEGANT DAVIS APARTMENT,FLAT NO.503, 11 DAVIS ROAD,RICHARDS TOWN,BANGALORE-560008&... PETITIONER| IBY SRI MURTHY DAYANAND NAIK, ADV.} AND: ASSISTANT COMMISSIONER ©OF INCOME TAX (OSD)THE TAX RECOVERY OFFICE (CENTRAL)$ FLOOR, CENTRAL REVENUE BUILDING,QUEENS ROAD,BANGALORE -560 OO]_. RESPONDENT. [BY SRI E.L.SANMATHI, ADV. FOR SRI K.V.ARAVIND, ADV.| THERESE WRIT PRTITIONS ARB FILED UNDER ARTICLE226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TOQUASH ANNEXURE-A DATED 28.03.2018 FOR THE A.Y.2007-2008, THE NOTICE TO SHOW CAUSE WHY A WARRANT OFARREST SHOULD NOT BR [SSUBD IN FORM NO._LT.C.P-25ISSUBD BY THR RESPONDENT AND BIC. THRESKB PRTITIONS COMING ON FOR PRELIMINARHEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THEKHOLLOWING: -9.- ORDER In these writ petitions, the challenge is made tothe show-cause notices issued by the respondent underRule 73 of the Schedule — I] — Procedure tor Recovery ofTax in Part — V — Arrest and Detention of the Detaulter|under the Income Tax Act, 1961 relating to theAssessment years 2007-08, 2009-10, 2010-11 anddefreeze the savings bank account of the petitionerstanding in|his name at HDFC Bank Limited,Nandidurga Main Road Branch, Jayamahal Extension,Bangalore. oD The petitioner is an assessee under theprovisions of the Income Tax Act, 1961 (‘Act’ for short)who has been carrying on the business in the name andstyle of 8.M.S.K. Mineral Trading Company. It is theerievance of the petitioner that despite the relief given tothe assessee by the Income Tax Appellate Tribunal,Panaji Bench by an order dated 22.12.2017 relating to -3- the assessment years in question, the revenue hasissued the show-cause notice calling upon the petitionerto appear before the authority for the alleged defaultcommitted in making the payment of tax. 3.|Learned counsel for the petitioner would|submit that in terms of Rule 75 of Schedule —II, custodypending hearing can be invoked by the Tax RecoveryOfficer. Hence, in the circumstances, interest of thepetitioner has to be protected. 4Learned counsel for the revenue would|submit that the petitioner is before this Court only onthe apprehension of committing him to the civil prison. —It is trite that unless the reply submitted by thepetitioner dated 31.03.2018 to the show-cause noticeissued is considered, an order of detention is passed interms of Rule 76 of Schedule —- II after hearing thepetitioner, the detention of the defaulter in the civilprison may not arise and further an appeal is provided -4- under Rule 86 of Schedule -II to challenge the order ofdetention, if any, passed by the Tax Recovery Officerunder the Schedule -II. The machinery is provided toChallenge the order of detention, if any, passed by theTax Recovery Officer. Reliance is also placed on theorder of this Court passed in Crl.P.No.3668/2018, dated26.06.2018 to contend that the anticipatory bail movedby the petitioner has been rejected observing that theshow-cause notice impugned does not give rise to anyapprehension of immediate arrest so as to invoke thejurisdiction of the Sessions Court or High Court underSection 438 of Cr.P.C.. 5.||havecarefullyconsideredthe|rival submissions of the learned counsel for the parties. —Perused the records. 6. It is not in dispute that pursuant to theshow-cause notice impugned dated 28.03.2018 relatingto the assessment years in question, the petitioner has 5.||havecarefullyconsideredthe|rival submissions of the learned counsel for the parties. —Perused the records. 6. It is not in dispute that pursuant to theshow-cause notice impugned dated 28.03.2018 relatingto the assessment years in question, the petitioner has submitted the detailed reply dated 31.03.2018. Interms of Rule 73 of Schedule — II, show-cause notices|have been issued calling upon the petitioner to appearbefore the Tax Recovery Officer on the dates specified inthe notices. The apprehension of the petitioner that hemay be committed to the civil prison on the date ofappearance can be allayed with, directing the TaxRecovery Officer to consider the reply submitted by thepetitioner and to take a decision in accordance with lawaiter providing reasonable opportunity of hearing to thepetitioner. T |Hence, the petitioner shall appear before therespondent on 14.10.2019 without waiting for anyfurther notice and respondent shall consider theexplanation of the petitioner in terms of the replysubmitted and aiter providing reasonable opportunity ofhearing shall take a decision in the matter in -6- accordance with law in an expedite manner. All rightsand contentions of the parties are left open. No precipitative action shall be taken till the finalorder shall be passed by the respondent in accordancewith law. | With the aforesaid observations and directions,|the writ petitions stand disposed of. | PMR Sd/-.JUDGE