Wp/9458/2023 Of Sri Kulumepalya Lenkegowda v. Income Tax Officer, Ward 2

Digitallysigned byNARASIMHAMURTHYVANAMALALocation:HIGHCOURT OFKARNATAKA IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2 DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR -WRIT PETITION NO. 9458 OF 2023 (TIT) BETWEEN: SRI. KULUMEPALYA LENKEGOWDA SHIVAKUMAR AGED 53 YEARS S/O LATE SRI LENKE GOWDA KULUMEPALYA, KATHRIGHATTA HUTHIDURGA POST, KUNIGAL TUMKUR-572126. …PETITIONER (BY SRI. BALARAM R RAO, ADVOCATE FOR SRI. THIRUMALESH M.,ADVOCATE) AND: 1. INCOME TAX OFFICER, WARD 2 AAYAKAR BHAVAN, RAMAKRISHNANAGAR KUNIGAL ROAD TUMKUR-572103. 2. NATIONAL FACELESS APPEAL CENTRE REPRESENTED BY ITS COMMISSIONER, OF INCOME TAX (APPEALS) ROOM NO.356, C R BUILDING I P ESTATE, DELHI-110002. REPRESENTED BY ITS COMMISSIONER, OF INCOME TAX (APPEALS) ROOM NO.356, C R BUILDING I P ESTATE, DELHI-110002. …RESPONDENTS (BY SRI.M. DILIP.,ADVOCATE) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ASSESSMENT ORDER FOR THE ASST YEAR 2017-18 UNDER SECTION 143(3) OF THE INCOME TAX ACT PASSED BY THE R1 INCOME TAX OFFICER WARD2 TUMAKUR, IN ITBA/AST/S/143(3)/2019-20/1017553584(1) ALONG WITH CONSEQUENTIAL DEMAND NOTICE IN ITBA/AST/S/156/2019-20/1017553595(1) AND COMPUTATION SHEET IN ITBA/AST/S/114/2019-20/1017553594(1) ALL DATED 24.08.2019 ANNX-F G AND H AND ETC. THIS 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 declaration in the nature of writ of certiorari quashing the assessment order for the Asst. Year 2017-18 under section 143(3) of the Income Tax Act passed by the first respondent, Income Tax Officer, Ward 2, Tumkur, in ITBA/ AST/ S/ 143(3)/ 2019-20/1017553584(1) along with consequential demand notice in ITBA/ AST/S/156/2019-20/1017553595(1) and Computation Sheet in ITBA/AST/ the nature of writ of certiorari quashing the assessment order for the Asst. Year 2017-18 under section 143(3) of the Income Tax Act passed by the first respondent, Income Tax Officer, Ward 2, Tumkur, in ITBA/ AST/ S/ 143(3)/ 2019-20/1017553584(1) along with consequential demand notice in ITBA/ AST/S/156/2019-20/1017553595(1) and Computation Sheet in ITBA/AST/ S/114/2019-20/1017553594 (1), all dated 24-08- 2019-ANNEXURES-F, G & H; (ii) Issue a writ of certiorari or a declaration in the nature of writ of certiorari quashing the penalty order for the Asst. Year 2017- 18 under section 271AAC(1) of the Income Tax Act passed by the first respondent in ITBA/ PNL/F/271AAC(1)/2019-20/1025963091(1) the nature of writ of certiorari quashing the penalty order for the Asst. Year 2017- 18 under section 271AAC(1) of the Income Tax Act passed by the first respondent in ITBA/ PNL/F/271AAC(1)/2019-20/1025963091(1) along with consequential demand notice in ITBA/PNL/S/156/2020-21/1027090921 (1) both dated 02-03-2020-ANNEXURES-L & M. ITBA/PNL/S/156/2020-21/1027090921 (1) both dated 02-03-2020-ANNEXURES-L & M. 2. Heard the learned counsel for the parties and perused the material on record. 3. In addition to reiterating various contentions urged in the petition and referring to the material on record, the learned counsel for the petitioner invited my attention to the impugned order in order to point out that apart from the fact that the same is un-reasoned and non-speaking order, the details as regards how and when the notice dated 17.07.2019 under Section 142[1] of the Income Tax Act, 1961 [for short, ‘the Act’] was allegedly served upon the petitioner are conspicuously absent in the impugned order and the first respondent has proceeded to pass the impugned order without providing sufficient and reasonable opportunity to the petitioner to submit his reply along with the documents thereby violating principles of natural justice, and as such, the petitioner is before this Court by way of present petition. petitioner are conspicuously absent in the impugned order and the first respondent has proceeded to pass the impugned order without providing sufficient and reasonable opportunity to the petitioner to submit his reply along with the documents thereby violating principles of natural justice, and as such, the petitioner is before this Court by way of present petition. 4. The learned counsel for the petitioner has filed a memo seeking to unconditionally withdraw the appeal filed by him before the first appellate Authority in relation to the impugned order. Per contra, the learned counsel for the respondents submits that there is no merit in the petition which is highly belated and having been filed after almost four years after the impugned order, the same is barred by delay and laches and deserves to be set aside. 5. A perusal of the impugned order will indicate that the first respondent has not stated the details as to the service of notice upon the petitioner or as to whether the same was uploaded on the portal or sent to the registered NC: 2024:KHC:4537 e-mail ID of the petitioner. In the paragraph-4 of the impugned order, except stating that notice under section 142[1] of the Act was issued to the petitioner, the first respondent has not stated as to when the said notice was delivered/served upon the petitioner. Under these circumstances, I am of the considered opinion that the impugned notice, proceedings culminating in the impugned order cannot be said to have been done after providing sufficient and reasonable opportunity to the petitioner thereby violating principles of natural justice and consequently the impugned order deserves to be set aside by adopting justice oriented approach and to provide one more opportunity to the petitioner to submit his reply to the said notice under Section 142 of the Act and with the direction to the respondents to proceed further in accordance with law. However, it is to be stated that since indulgence is being shown in favour of the petitioner after a lapse of almost four years from the date of the impugned order, in the event, the first respondent passes an order against the petitioner after remand by virtue of this order, the first respondent would be entitled to claim interest on the amount in terms of the Notice of Demand dated 24.08.2019 [Annexure-G]. In the result, the following: ORDER [a] The petition is hereby allowed. [b] The impugned order dated 24.08.2019 [Annexure-F] of the first respondent is hereby set aside. [Annexure-F] of the first respondent is hereby set aside. [c] The matter is remitted back to the first respondent for reconsideration afresh in accordance with law. [d] Liberty is reserved in favour of the petitioner to submit his response/reply along with the documents to the first respondent who shall consider the same and proceed further in accordance with law. In the event, the first respondent does not accept the response/reply of the petitioner and passes an order against the petitioner, the first NC: 2024:KHC:4537 respondent would be entitled to claim interest on the amount in terms of the Notice of Demand dated 24.08.2019 [Annexure-G]. Sd/- JUDGE AN/-