M/S MEGACITY (BANGALORE) BUILDERS vs. THE PRINCIPAL COMMISSIONER OF INCOME TAX-2

THE PRINCIPAL COMMISSIONER OF INCOME TAX-2 BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, NEAR KHB GAMES VILLAGE, KORAMANGALA, BANGALORE, KARANTAKA – 560 095.

THE ASSESSMENT UNIT INCOME TAX DEPARTMENT NATIONAL E-ASSESSMENT CENTRE, INSIDE JAWAHARLAL NEHRU STADIUM, NEW DELHI – 110 001.

THE DEPUTY COMMISSIONER OF INCOME TAX BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, NEAR KHB GAMES VILLAGE,

Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.

A perusal of the material on record will indicate that respondent No.2 issued the impugned notice dated 04.03.2023 under Section 142(1) of the Income Tax Act at Annexure-P2 to the petitioner asking him to appear on 06.03.2023. Since, there was short gap of time, petitioner did not appear and did not submit reply which culminated in the impugned order dated 26.03.2023 at Annexure-R. Similarly, respondent No.2 issued Show Cause Notice dated 13.03.2023 at Annexure-Q calling upon the petitioner to appear on 15.03.2023. Due to insufficient opportunity, the petitioner

In this context, it is pointed out that inability and omission on the part of the petitioner to submit replies to the notices issued by the respondents and to participate in the proceedings was due to bonafide and unavoidable circumstances and sufficient cause and consequently, the petitioner was not in a position to issue reply or appear before the respondents and participate in the said proceedings. It is submitted that the petitioner has a good case to urge on merits and if one more opportunity is granted in favour of the petitioner, the petitioner would submit its reply along with the documents and participate in the proceedings and as such, it is necessary that the impugned orders / Notices at Annexures – R, R1 and Q be set aside and the matter be remitted back to the respondents by providing one more opportunity to the petitioner to submit its reply to the notices and direct the respondents to proceed further in accordance with law.

Per contra, learned counsel for the respondents submits that despite sufficient opportunity being granted in favour of the petitioner, the petitioner did not send its reply nor participated in the proceedings and consequently, the impugned order does not warrant interference by this Court and the petition is liable to be dismissed. 6. A perusal of the impugned order at Annexure – R will clearly indicate that the same was passed in the absence of the petitioner, who did not avail the opportunity provided by the respondent, who has proceeded to pass the impugned order. In view of the aforesaid facts and circumstances and specific assertions on the part of the petitioner that due to bonafide reasons, unavoidable circumstances and sufficient cause, the petitioner was not in a position to send reply enclosing documents and contest the proceedings and in order to provide one more opportunity to the petitioner, by 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 after providing one more opportunity to the petitioner in this regard.

In the result, I pass the following: ORDER (i) The impugned notice / orders at Annexures – R, R1 and Q dated 26.03.2023, 26.03.2023 and 13.03.2023 respectively, are hereby set aside. (ii) Matter is remitted back to the stage of petitioner submitting reply to Annexure-P dated 21.10.2022 under Section 142(1) and to proceed further in accordance with law. (iii) Liberty is reserved in favour of the petitioner to file its reply, pleadings, documents, etc., before respondent No.2, who shall consider the same and pass appropriate orders in accordance with law. (iv) All rival contentions are kept open and no opinion is expressed on the same.