IRENE KOSASE ALBUQUERQUE vs. INCOME TAX OFFICER

PDF · subscribers
WP/12391/2024HC KarnatakaKAHC01023286202413 August 2024Bench: S.R.KRISHNA KUMAR7 pages
AI SummaryAllowed

What did the High Court hold?

The High Court allowed the writ petition. The Court found that the petitioner had specifically stated and produced material to establish that the amounts deposited during the Financial Year 2018-19 were only Rs. 29,30,000/-. The respondents, however, failed to consider this reply and the produced material. The Court held that the impugned order was passed mechanically and summarily, in violation of the principles of natural justice. Consequently, the impugned orders (Annexures- D, Z, and Z1) dated March 7, 2023, March 13, 2024, and March 13, 2024, respectively, were quashed. The matter was remitted back to the respondents for reconsideration from the stage of issuing the notice under Section 148A(b) dated January 24, 2023. Liberty was granted to the petitioner to submit additional replies and documents, which the respondents were directed to consider after providing a reasonable opportunity and hearing the petitioner.

What were the facts?

The petitioner, Irene Kosase Albuquerque, filed a writ petition before the High Court of Karnataka challenging orders and notices issued by the Income Tax Department for Assessment Year (AY) 2019-20. The challenge was directed against an order under Section 148A(d) dated March 7, 2023, an order under Section 147 read with Section 144B dated March 13, 2024, and a Notice of Demand under Section 156 dated March 13, 2024. The petitioner contended that the show cause notice under Section 148A(b) dated January 24, 2023, erroneously stated income escaping assessment at Rs. 1,46,50,000/-. The petitioner submitted a reply stating that only Rs. 29,30,000/- was deposited in her account during the relevant financial year, but this was allegedly not considered by the respondents.

What were the issues?

1. Whether the order passed under Section 148A(d) of the Income Tax Act, 1961, dated March 7, 2023, is illegal, arbitrary, and contrary to the material on record, specifically concerning the alleged income escaping assessment for AY 2019-20. Assessee's Contention: The petitioner argued that the show cause notice under Section 148A(b) incorrectly stated the income escaping assessment at Rs. 1,46,50,000/-. Despite the petitioner providing a reply at Annexure-B1 dated February 28, 2023, clarifying that only Rs. 29,30,000/- was deposited, the respondents proceeded to pass the order under Section 148A(d) on the erroneous premise that income escaping assessment exceeded Rs. 50 lakhs, thereby invoking the said provision. The petitioner contended that this order, along with subsequent notices and assessment orders, is illegal and deserves to be quashed. Revenue's Contention: The respondents argued that there is no merit in the petition and it is liable to be dismissed.

Which sections of the Income-tax Act were involved?

Section 148A(d),Section 147,Section 144B,Section 156,Section 148A(b),Section 148

AI-generated summary — verify with the full judgment below

- 1 -

NC: 2024:KHC:32947 WP No. 12391 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 12391 OF 2024 (T-IT) BETWEEN:

IRENE KOSASE ALBUQUERQUE, AGED ABOUT 58 YEARS, R/A 1-17/243 SILVER CREST, LANDLINKS TOWNSHIP, 3RD CROSS, DEREBAIL, KONCHA MANGALORE - 575 008. KARNATAKA, PAN NO. AKSPA8664J. …PETITIONER (BY SRI. BALRAM R RAO., ADVOCATE) AND:

1.

INCOME TAX OFFICER, C.R.BUILDING, N.G.ROAD, ATTAWARA, MANGALURU, KARNATAKA - 575 001.

2.

NATIONAL FACELES ASSESSMENT CENTRE, INCOME TAX DEPARTMENT, DELHI, 2ND FLOOR, E-RAMP JAWAHARLAL NEHRU STADIUM, DELHI - 110 003.

3.

PRINCIPAL COMMISSIONER OF INCOME TAX, AAYKAR BHAWAN, PLOT NO.5, EDC COMPLEX, PATTO PLAZA, PANAJI - 403 001, GOA. …RESPONDENTS (BY SRI.M.THIRUMALESH AND SMT.ROOPA R.A., ADVOCATES)

Digitally signed by Vandana S Location: HIGH COURT OF KARNATAKA

- 2 -

NC: 2024:KHC:32947 WP No. 12391 of 2024

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO i) CALLING FOR THE RECORDS OF THE PETITIONERS CASE AND AFTER EXAMINING THE LEGALITY AND VALIDITY THEREOF BE PLEASED TO QUASH AND SET ASIDE THE IMPUGNED ORDER UNDER SECTION 148A(d) OF THE ACT DATED 07/03/2023 IN DIN ITBA/AST/F/148A/2022- 23/1050477415(1) (ANNEXURE - D), IMPUGNED ORDER UNDER SECTION 147 R.W.S. 144B OF THE ACT DATED 13/03/2024 IN DIN ITBA/AST/S/147/2023-24/1062517759(1) (ANNEXURE-Z) AND NOTICE OF DEMAND ISSUED U/S 156 OF THE ACT DATED 13/03/2024 IN DIN ITBA/AST/S/156/2023-24/1062518042(1) (ANNEXURE-Z1) FOR THE AY 2019-20 AND ETC.,

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

In this petition, the petitioner seeks the following reliefs; 43. i. Writ of certiorari or 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 Petitioners case and after examining the legality and validity thereof be pleased to quash and set aside the Impugned order under Section 148A(d) of the Act dt.: 07.03.2023 in DIN: ITBA/AST/F/148A/2022- 23/1050477415(1) (ANNEXURE D), impugned order under Section 147 r.w.s. 144B of Act dated 13.03.2024 in DIN:

- 3 -

NC: 2024:KHC:32947 WP No. 12391 of 2024

ITBA/AST/S/147/2023-24/1062517759(1) (Annexure - Z) and Notice of Demand issued u/s. 156 of the Act dated 13.03.2024 in DIN: ITBA/AST/S/156/2023- 24/1062518042(1) (Annexure - Z1) for the AY 2019-20.

ii. Writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of Constitution of India ordering and directing the Respondents by themselves by their subordinates, servants or agents to withdraw and cancel the impugned order under Section 148A(d) of the Act dt.: 07.03.2023 in DIN:ITBA/AST/F/148A/2022-23/1050477415(1) (ANNEXURE D), impugned order under Section 147 r.w.s. 1448 of Act dated 13.03.2024 in DIN: ITBA/AST/S/147/2023-24/1062517759(1) (Annexure Z) and Notice of Demand issued u/s. 156 of the Act dated 13.03.2024 in DIN: ITBA/AST/S/156/2023- 24/1062518042(1) (Annexure - Z1) for the AY 2019- 20 and iii. A writ of Prohibition or a writ in the nature of Prohibition or any other appropriate writ, order or direction under Article 226 of Constitution of India prohibiting and restraining the Respondents by themselves their sub ordinates, servants and agents from taking any action in furtherance or consequent to notice issued u/s. 148A(b) of the Act dt.: 24.01.2023 in ITBA/AST/F/148A(SCN)/2022- 23/1049068325(1) DIN: (ANNEXURE A), impugned order under Section 148A(d) of the Act dt.: 07.03.2023 ITBA/AST/F/148A/2022-23/1050477415(1) in DIN: (ANNEXURE D), notice u/s. 148 of the dt.: 07.03.2023 in DIN: ITBA/AST/S/148_1/2022-23/1050479635(1)

- 4 -

NC: 2024:KHC:32947 WP No. 12391 of 2024

(ANNEXURE E), impugned order under Section 147 r.w.s. 1448 of Act dated 13.03.2024 in DIN: ITBA/AST/S/147/2023-24/1062517759(1) (Annexure Z) and Notice of Demand Issued u/s. 156 of the Act dated 13.03.2024 in DIN: ITBA/AST/S/156/2023- 24/1062518042(1) (Annexure Z1) for the AY 2019- 20 passed by Respondents.

iv. Grant the interim relief in terms of prayer (iii) above, and

V. Issue such other order, writ or direction as this Hon'ble Court deems fit".

2.

Heard learned counsel for the petitioner and learned counsel for the respondents. 3. In addition to reiterating various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner invited my attention to the impugned Show Cause Notice at Annexure-A dated 24.01.2023, in order to contend that in the said Notice, the respondents had erroneously stated that the income escaping assessment for the Assessment Year 2019-2020 (Financial Year 2018-19) was Rs.1,46,50,000/- without there being any material in support of the said allegation. In this context, it is pointed out that despite

- 5 -

NC: 2024:KHC:32947 WP No. 12391 of 2024

the petitioner submitting reply at Annexure-B1 dated 28.02.2023 specifically stating that the amounts deposited in the account of the petitioner during the Financial Year 2018-19 was only Rs.29,30,000/- on various dates and not Rs.1,46,50,000/- as wrongly contented by the petitioner, the respondents have proceeded to pass the impugned order at Annexure-D dated 07.03.2023 under Section 148A(d) of the Income Tax Act, 1961 on the erroneous premise that the income escaping assessment was in excess of Rs.50 lakhs, thereby, enabling invocation of Section 148A(d) of the Income tax Act, 1961. 4. It is submitted that the impugned order at Annexure-D dated 07.03.2023 passed under Section 148A(d) is illegal, arbitrary and contrary to the material on record and the same deserves to be quashed as also the subsequent notices, adjudication orders, assessment orders, etc., which deserve to be quashed. 5. Per contra, learned counsel for the respondents submits that there is no merit in the petition and the same is liable to be dismissed.

- 6 -

NC: 2024:KHC:32947 WP No. 12391 of 2024

6.

As rightly contended by learned counsel for the petitioner, a perusal of the material on record including the reply at Annexure-B1 dated 28.02.2023 submitted by the petitioner to the notice under Section 148A(b) of the Income Tax Act 1961, will indicate that despite the petitioner specifically stating and producing the material to establish that the amounts deposited by him during the Financial Year 2018- 19 was only Rs.29,30,000/-, the respondents have failed to consider the said reply as well as the material produced by the petitioner and has mechanically/summarily passed the impugned order in violation of the principles of natural justice, warranting interference by this Court in the present petition. 7. In the result, the petition is hereby allowed. The impugned Annexures- D, Z and Z1 dated 07.03.2023, 13.03.2024 and 13.03.2024 respectively, are hereby quashed. Matter is remitted back to the respondents for reconsideration afresh from the stage of issuance of notice under section 148A(b) of the Income Tax Act 1961 dated 24.01.2023 8. Liberty is reserved in favour of the petitioner to submit additional reply, document, etc., to the said notice

- 7 -

NC: 2024:KHC:32947 WP No. 12391 of 2024

which shall be considered by the respondents, who shall proceed further after providing sufficient and reasonable opportunity to the petitioner and hearing him in accordance with law.

Sd/- (S.R.KRISHNA KUMAR) JUDGE

PN CT: SN List No.: 1 Sl No.: 13

More judgments on Section 148A(d)

All 544 judgments and leading authorities on Section 148A(d) →

Latest GST High Court judgments

Search GST case law →