SRI BHEEMAPPA GUNADAL vs. THE INCOME TAX OFFICER

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WP/25960/2024HC KarnatakaKAHC01055083202424 September 2024Bench: S.R.KRISHNA KUMAR6 pages
AI SummaryRemanded

What did the High Court hold?

The High Court of Karnataka, after hearing both sides, observed that it was an undisputed fact that the petitioner had not submitted a reply to the Section 148A(b) notice. Considering the petitioner's assertion that the omission was due to bonafide reasons, unavoidable circumstances, and sufficient cause, and that granting one more opportunity would allow the petitioner to submit the required reply, the Court deemed it just and appropriate to set aside the impugned orders and notices. The matter was remitted back to the respondent (ITO) for reconsideration from the stage of submitting the petitioner's reply to the Section 148A(b) notice. The Court also granted liberty to the petitioner to submit all necessary replies, responses, pleadings, and documents, and directed the respondent to consider them and proceed in accordance with the law after providing a reasonable opportunity. The Court expressly left undecided any issues related to the merits of the assessment or penalties.

What were the facts?

The petitioner, Sri Bheemappa Gunadal, residing in California, USA, represented by his GPA holder, filed a writ petition before the High Court of Karnataka. The petition challenged an ex parte order dated 19.04.2022 passed by the Income Tax Officer (ITO), Ward International Taxation 1(1), under Section 148A(d) of the Income Tax Act, 1961, and a subsequent notice dated 19.04.2022 issued under Section 148 of the Act. The petitioner also sought to quash a draft assessment order dated 19.01.2024, the assessment order dated 12.03.2024 for assessment year 2015-16, and penalty notices dated 13.03.2024. The core of the petitioner's grievance was that he did not receive the initial notice under Section 148A(b) dated 26.03.2022, preventing him from submitting a reply.

What were the issues?

1. Whether the ex parte order and subsequent notices/orders passed by the Respondent under Sections 148A(d), 148, 144C(1), 147 read with 144, and 156 of the Income Tax Act, 1961, are liable to be quashed on the ground that the petitioner was not afforded a reasonable opportunity to respond to the notice issued under Section 148A(b) of the Act. Assessee's Contention: The petitioner argued that the notice under Section 148A(b) dated 26.03.2022 was not received, and consequently, the petitioner was unaware of it and could not submit a reply. This omission was due to bonafide reasons, unavoidable circumstances, and sufficient cause. The petitioner sought an opportunity to submit a reply and have the matter reconsidered. Revenue's Contention: The respondent submitted 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,Section 148A(d),Section 148,Section 144C,Section 144C(1),Section 147,Section 144,Section 156,Section 271(1)(b),Section 271(1)(c),Section 271F,Section 274

AI-generated summary — verify with the full judgment below

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NC: 2024:KHC:39613 WP No. 25960 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.25960 OF 2024 (T-IT) BETWEEN:

SRI BHEEMAPPA GUNADAL, (SIC. BHEEMUKASAPPA GUNADAL IN THE IMPUGNED NOTICES AND ORDERS), S/O. SRI KASAPPA GUNADAL, AGED ABOUT 47 YEARS, RESIDING AT NO.2919, LIBERTY DRIVE PLEASANTON, CALIFORNIA- USA 94566.

REPRESENTED BY GPA HOLDER SMT. VIJAYALAKSHMI C J, RESIDING AT NO.38, 1ST FLOOR, WEST ANJANEYA TEMPLE STREET, BASAVANAGUDI, BENGALURU-560 004. …PETITIONER

(BY SMT. VANI H., ADVOCATE) AND:

THE INCOME TAX OFFICER, WARD INTERNATIONAL TAXATION 1(1), BMTC BUILDING, 80 FEET ROAD, SIXTH BLOCK, KORAMANGALA, BANGALORE-560 095. …RESPONDENT

(BY SRI. E.I.SANMATHI, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE EX PARTE ORDER BEARING NO.ITBA/AST/F/148A/2022-23/ 1042778217(1) DATED 19.04.2022 PASSED BY THE RESPONDENT UNDER SECTION 148A(d) OF THE ACT VIDE ANNEXURE-B. SET

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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NC: 2024:KHC:39613 WP No. 25960 of 2024

ASIDE THE NOTICE BEARING NO.ITBA/AST/S/148 1/2022- 23/1042783516(1) DATED 19.04.2022 ISSUED BY THE RESPONDENT UNDER SECTION 148 OF THE ACT VIDE ANNEXURE-C; 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: (a) Issue a writ of certiorari or any other writ or a direction to quash and set aside the ex parte order bearing No. ITBA/AST/F/148A/2022-23/ 1042778217(1) dated 19.4.2022 passed by the Respondent under Section 148A(d) of the Act vide Annexure B,

(b) Issue a writ of certiorari or any other writ or a direction to quash and set aside the notice bearing No.ITBA/AST/S/148_1/2022-23/ 1042783516(1) dated 19.4.2022 issued by the Respondent under Section 148 of the Act vide Annexure C,

(c) Issue a writ of certiorari or any other writ or a direction to quash and set aside the draft order bearing No. ITBA/AST/F/144C/2023-24/ 1059948316(1) dated 19.1.2024 under section 144C(1) of the Act issued by the Respondent vide Annexure E,

(d) Issue a writ of certiorari or any other writ or a direction to quash and set aside the impugned assessment order bearing No.ITBA/AST/S/147/

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NC: 2024:KHC:39613 WP No. 25960 of 2024

2023-24/1062433738(1) dated 12.3.2024 passed by the respondent under Section 147 read with Section 144 of the Act for the assessment year 2015-16 vide ANNEXURE-F, and the demand notice dated 12.3.2024 issued by the respondent under Section 156 of the Act vide ANNEXURE- G.

(e) Issue a writ of certiorari or any other writ or a direction to quash the impugned three show cause notices bearing Nos.ITBA/PNL/S/271(1)(b)/2023- 24/1062565983(1), ITBA/PNL/S/271(1)(c)/2023- 24/1062566166(1) and ITBA/PNL/S/271F/2023- 24/1062565782(1) even dated 13.3.2024 issued by the Respondent proposing levy of penalty under section 274 read with sections 271(1)(b), 271(1)(c) and 271 F of the Act for the assessment year 2015- 16 vide Annexure-H, Annexure H-1 and Annexure H-2,

(f) Issue a writ of mandamus or a writ in the nature of mandamus directing the respondent to afford reasonable opportunity to petitioner to furnish reply to notice under Section 148A(b) bearing No. ITBA/AST/F/148A(SCN)/2021-22/ 1041684704(1) dated 26.3.2022 issued by the Respondent vide Annexure A and to pass orders in accordance with law after judiciously considering the replies and documents to be furnished by Petitioner.

(g) Issue such other order and further reliefs as deemed fit by this Hon'ble Court.

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NC: 2024:KHC:39613 WP No. 25960 of 2024

2.

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

3.

In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, the learned counsel for the petitioner submits that notice issued by the respondent under Section 148A(b) of the Income Tax Act, 1961 (for short, ‘IT Act’), dated 26.03.2022 was not received by the petitioner and he was not aware of the notice and consequently, the petitioner could not submit his reply / response along with documents to the said notice. It is submitted that the inability and omission on the part of the petitioner to submit reply / response along with documents to the Section 148A(b) notice was due to bonafide reasons, unavoidable circumstances and sufficient cause and as such, if one more opportunity is provided to the petitioner to do so by setting aside the impugned orders and notices, the petitioner would do so and respondent may be directed to proceed further in accordance with law.

4.

Per contra, the learned counsel for the respondent submits that there is no merit in the petition and that the same is liable to be dismissed.

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NC: 2024:KHC:39613 WP No. 25960 of 2024

5.

A perusal of the impugned order will indicate that it is an undisputed fact that the petitioner has not submitted reply / response along with documents to Section 148A(b) notice. Under these circumstances, in view of the specific assertion on the part of the petitioner that his inability and omission to submit a reply along with documents to Section 148A(b) notice was due to bonafide reasons, unavoidable circumstances and sufficient cause and if one more opportunity is granted, the petitioner would submit reply along with documents, I deem it just and appropriate to set aside the impugned order at Annexure-B dated 19.04.2022 passed under Section 148A(d) of the IT Act and subsequent notice / orders, etc., and remit the matter back to the respondent for re-consideration afresh from the stage of submitting of reply by the petitioner to Section 148A(b) notice and to proceed further in accordance with law.

6.

In the result, I pass the following:

ORDER

(i) The petition is hereby allowed. (ii) Impugned notices / orders at Annexures B, C, E, F, G, H, H1, H2 are hereby set aside. (iii) Matter is remitted back to respondent for reconsideration afresh in accordance with law from the stage of submitting of reply to the Show Cause

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NC: 2024:KHC:39613 WP No. 25960 of 2024

Notice under Section 148A(b) of the IT Act at Annexure-A dated 26.03.2022. (iv) Liberty is reserved in favour of the petitioner to submit replies, responses, pleadings, documents, etc., to the respondent, who shall consider the same, provide sufficient and reasonable opportunity to the petitioner and proceed further in accordance with law.

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

MD List No.: 1 Sl No.: 31

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