Wp/22190/2023 Of M/S Shram Enterprises v. Assistant Commissioner Of Income Tax

Digitally signed byVANDANA SLocation: HighCourt of Karnataka IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20 DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR -WRIT PETITION NO.22190 OF 2023 (TIT) BETWEEN: M/S SHRAM ENTERPRISES (A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF RESTURANT) HAVING ITS REGISTERED OFFICE AT NO.5, SHIV SAGAR NARAYANA PILLAI STREET COMMERCIAL STREET BANGALORE 560001, KARNATAKA REPRESENTED BY ITS MANAGING PARTNER SHRI RAM M BALIKERE AGED ABOUT 51 YEARS …PETITIONER (BY SRI BALRAM R RAO, ADVOCATE) AND: 1. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 3(1)(1), BANGALORE BMTC BUILDING 80 FT ROAD, 6 BLOCK NEAR KHB GAMES VILLAGE KORAMANGALA BENGALURU -560 095 2. ADDITIONAL / JOINT / DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX / INCOME TAX OFFICER NATIONAL FACELESS ASSESSMENT CENTRE DELHI INCOME TAX DEPARTMENT DELHI, II FLOOR, E RAMP JAWAHARLAL NEHRU STADIUM NC: 2024:KHC:7048WP No. 22190 of 2023 DELHI -110003. (BY SRI M.DILIP, ADVOCATE) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF THE PETITIONERS CASE AND AFTER EXAMINING THE LEGALITY AND VALIDITY THEREOF QUASH AND SET ASIDE THE IMPUGNED ORDER PASSED UNDER CLAUSE (d) OF SECTION 148A OF THE ACT DTD 29.03.2022 IN DIN AND NOTICE NO.ITBA/AST/F/148A/2021-22/1041922713(1) ANNEXURE-B AS WELL AS NOTICE DTD 29.03.2022 ISSUED U/S 148 OF THE ACT IN DIN AND NOTICE NO.ITBA/AST/S/148-1/2021-22/1041940711(1) ANNEXURE-C PASSED BY THE R1 FOR THE ASSESSMENT YEAR 2018-19 AND ETC., THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER In this petition, the petitioner seeks the following reliefs: i.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 for the petitioner's case and after examining the legality and validity thereof be pleased to quash and nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records for the petitioner's case and after examining the legality and validity thereof be pleased to quash and set aside the impugned order passed under clause (d) of section 148A of the Act dated 29.03.2022 in DIN & Notice No.ITBA/AST/F/148A/2021-22/10419227 13(1) as well as notice dt.29.03.2022 issued under section 148 of the Act in DIN & Notice No.ITBA/AST/S/148_1/2021-22/1041940 711(1) passed by the 1[st]respondent for the Assessment Year 2018-19; or ii.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's case and after examining the legality and validity thereof be pleased to quash and set aside the impugned order passed 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's case and after examining the legality and validity thereof be pleased to quash and set aside the impugned order passed Section 147 r.w.s. 144 of the Act dated 17.03.2023 in DIN & Order No.ITBA/AST/S/147/2022-23/10508980 71(1) [Annexure-Q] as well as notice of demand dated 17.03.2023 issued under Section 156 of the Act in DIN & Notice No.ITBA/AST/S/156/2022-23/10508980 82(1) [Annexure-R] for the Assessment Year 2018-19 passed by the 2[nd]Respondent; iii.A writ of mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing the respondents by themselves, their subordinate, servants and agents to withdraw and cancel the impugned order passed under Section 147 r.w.s. 144 of the Act dated 17.03.2023 in DIN & Order Section 147 r.w.s. 144 of the Act dated 17.03.2023 in DIN & Order No.ITBA/AST/S/147/2022-23/10508980 71(1) [Annexure-Q] as well as notice of demand dated 17.03.2023 issued under Section 156 of the Act in DIN & Notice No.ITBA/AST/S/156/2022-23/10508980 82(1) [Annexure-R] for the Assessment Year 2018-19 passed by the 2[nd]Respondent; iii.A writ of mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing the respondents by themselves, their subordinate, servants and agents to withdraw and cancel the impugned order passed under Section 147 r.w.s. 144 of the Act dated 17.03.2023 in DIN & Order No.ITBA/AST/S/147/2022-23/10508980 71(1) [Annexure-Q] as well as the notice of demand dated 17.03.2023 issued under Section 156 of the Act in DIN & Notice No.ITBA/AST/S/156/2022-23/10508980 82(1) [Annexure-R] for the assessment year 2018-19 passed by the respondent year 2018-19 passed by the respondent and iv.A writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction under Article 226 of the Constitution of India prohibiting and restraining the respondents by themselves , their subordinate, servants and agents from taking any action in furtherance or consequent to impugned order passed under Section 147 r.w.s 144 of the Act dated 17.03.2023 in DIN & Order No. ITBA/AST/S/147/2022-23/10508980 71(1) of prohibition or any other appropriate writ, order or direction under Article 226 of the Constitution of India prohibiting and restraining the respondents by themselves , their subordinate, servants and agents from taking any action in furtherance or consequent to impugned order passed under Section 147 r.w.s 144 of the Act dated 17.03.2023 in DIN & Order No. ITBA/AST/S/147/2022-23/10508980 71(1) - 6 - [Annexure-Q] as well as notice of demand dated 17.03.2023 issued under Section 156 of the Act in DIN & Notice No.ITBA/AST/S/156/2022-23/10508980 82(1) [Annexure-R] for the assessment year 2018-19 passed by the respondent". 2.In addition to reiterating the various contentions urged in the petition and referring to the material on record, the learned counsel for the petitioner invites my attention to the impugned order dated 29.03.2022 [Annexure-B] in order to point out that the material details and particulars regarding service of notice under Section 148 (A(b) of the Income Tax Act,1961 [for short, 'IT Act'] dated 15.03.2022 which is said to have been served upon the petitioner are conspicuously absent in the impugned order. It is also submitted that the notice was not received by the petitioner and the petitioner was not provided sufficient and reasonable opportunity to submit his response/reply along with the documents to the - 7 - aforesaid notice under Section 148 A(b) of the IT Act and consequentially, the impugned order under Section 148 A(d) of the IT Act is violative of principles of natural justice and the same deserves to be set aside and the matter be remitted back to the respondents for reconsideration afresh in accordance with law. 3.Per contra, the learned counsel for the respondents would support the impugned order and submits that there is no merit in the petition and the same is liable to be dismissed. 4.As rightly contended by the learned counsel for the petitioner, a perusal of the impugned order indicates that except stating that the notice under Section 148A(b) of the IT Act had been issued, the respondents has neither stated nor given the details/particulars regarding service of notice upon the petitioner nor any opportunity has been provided to the petitioner to submit his response/reply to the said notice. 3.Per contra, the learned counsel for the respondents would support the impugned order and submits that there is no merit in the petition and the same is liable to be dismissed. 4.As rightly contended by the learned counsel for the petitioner, a perusal of the impugned order indicates that except stating that the notice under Section 148A(b) of the IT Act had been issued, the respondents has neither stated nor given the details/particulars regarding service of notice upon the petitioner nor any opportunity has been provided to the petitioner to submit his response/reply to the said notice. 5.Under these circumstances coupled with the specific assertion on the part of the petitioner that his inability and omission to submit his reply to the notice under Section 148A(b) of the IT Act was due to bona fide reasons, unavoidable circumstances and sufficient cause, adopting a justice oriented approach, I deem it just and appropriate to set aside the impugned order and remit the matter back to the respondents for reconsideration afresh in accordance with law from the stage of notice under Section 142 A(b) of the IT Act and proceed further in the matter. 6.In the result, the following" ORDER i.The petition is allowed. ii.The impugned order at Annexure-B dated 29.03.2022, Annexure-C dated 29.03.2022, Annexure-Q dated 17.03.2023 and Annexure-R dated 17.03.2023 are hereby set aside. iii.The matter is remitted back to the respondents for reconsideration afresh in accordance with law from the stage of issuance of notice under Section 148 A(b) of the IT Act. iv.Liberty is reserved in favour of the petitioner to submit his reply/response along with documents to the notice under Section 148A(b) of the IT Act which shall be considered by the respondents after providing sufficient and reasonable opportunity to the petitioner in accordance with law. SD/- JUDGE List No.: 1 Sl No.: 15