Wp/51583/2019 Of Nataraj S L v. Assistant Commissioner Of Income Tax

IN THR HIGH COURT OF KARNATAKA AT BENGALURU DATEBD THIS THE DAY OF DECEMBER 2019 BEKORE THE HON’BLE MRS. JUSTICE S. SUJATHA WRIT PETITION NO.51583 OF 2019 (T IT) BETWEEN: Nataraj 5.L.,»on of S.N.Lakshminarayana Deekshith,Aged about 49 years,Residing at No.468, 12[th]Main,11[th]Cross, A sector,Yelahanka New Town,Yelahanka, Bengaluru-560010. _. Petitioner (By Sri. Gautam Shreedhar Bharadwaj, Advocate) AND:Assistant Commissioner of Income Tax,Circle 3(2) (1), BMTC Building,80 Feet Road, 6[th]Block,Near KHB Games Village, Koramangala,Bengaluru-S60095. ... Respondent (By Sri. K.V.Arvind, Advocate) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash theimpugned order dated 26.09.2019 passed by theassistant commissioner oft Income Jax Annexed asAnnexure-A and etc. This Writ Petition coming on for PreliminaryHearing this day, the Court made the following: ORDER Learned counsel Sri. K.V. Aravind accepts noticefor the respondent. 2. The petitioner has assailed the order dated.26.09.2019 passed by the Assistant Commissioner ofIncome Tax at Annexure ‘A’ to the writ petition relatingto the assessment year 2016-2017. The petitioner isassessed under the income tax Act, 1961, (“Act” forshort). 3. The petitioner is engaged in the business ofbar and restaurant in the name and style of “Aruna Barand Restaurant”. For the assessment year 2017-18, thepetitioner had filed the return of income declaring thetax liability of Rs.4,14,890/-. The respondent-authorityhas issued a notice under Section 133(6) of the Act tothe Bankers of the petitioner calling upon them to furnish the bank statements of the petitioner relating tothe period 01.04.2016 to 31.03.2017, which has beencomplied by the bankers. The respondent — authorityconsidering the same proceeded to pass the assessment.order under Section 144 of the Act which is impugnedherein. 4. The learned counsel for the petitioner wouldsubmit that the respondent-authority has wronglyadopted the figure of Rs.3,/79,70,200/- as the incomeand added the same under Section 609A oft the Act tcompute the total tax hability. The learned counselmade an endeavour to contend that in terms of the VAT|returns submitted by the petitioner, the net profit wasTUrNOVerLRs.19,34,871/-;totalTUrNOVerLWaSRs.3,95,77,814/-andtotalpurchaseWaSRs.3,76,42,943/-..Thatbeingthe.situation,Rs.3,79,/0,200/- cannot be construed as the income of the petitioner. No reasonable opportunity was provided to the assesse to put forth the explanation. oS. The learned counsel for the Revenue justifyingthe order impugned submitted that the factual aspectsin as much as the VAT returns and the tax liability towhich the petitioner is subjected, cannot be adjudicatedin the writ jurisdiction. 6. Having regard to the facts and circumstancesof the case as aforesaid, it is ex-facie apparent that noreasonable opportunity was provided to the petitioner toput forth his explanation. Moreover, no show causenotice under Section 144 of the Act was issued to the|petitioner. In such circumstances, this court is of theconsidered opinion that the order impugned dated26.06.2019 at Annexure ‘A’ shall be treated as show|cause notice. The petitioner shall put forth hisreply/objections within a period of two weeks from thedate of receipt of the certified copy of the order. On > receipt of such reply/objections, the respondent-authority shall conclude the assessment after providing an opportunity of hearing to the petitioner. Demandnotice which is part of Annexure ‘A’ dated 26.09.2019°issued under Section 156 of the Act is set aside. Writ petition stands disposed of in terms of the above. | sd Sd/-)JUDGE