KABBATHI BOCHEGOWDA SHIVANNA vs. COMMISSIONER OF INCOME TAX (APPEALS)

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WP/6645/2024HC KarnatakaKAHC01013313202416 April 2024Bench: S.R.KRISHNA KUMAR5 pages
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What did the High Court hold?

The High Court, adopting a justice-oriented approach, set aside the impugned assessment order dated 24.03.2023 (Annexure-A) and the demand notice dated 24.03.2023 (Annexure-B) passed by the Assessing Officer (R2). The court noted the petitioner's submission that he could not contest the proceedings due to bonafide reasons, unavoidable circumstances, and sufficient cause. The matter was remitted back to the Assessing Officer (R2) for fresh consideration in accordance with law. The court placed on record the petitioner's submission to unconditionally withdraw the appeal. The impugned notice at Annexure-H dated 09.11.2023, attaching the petitioner's bank account, was also set aside, with the condition that any amount already recovered pursuant to this notice shall be adjusted at the time of passing fresh orders by R2. No opinion was expressed on the merits or demerits of the rival contentions.

What were the facts?

The petitioner, Kabbathi Bochegowda Shivan, filed a writ petition challenging an assessment order dated 24.03.2023 passed by the Assessing Officer (R2) and a demand notice dated 24.03.2023 issued by R2. The petitioner also sought to quash orders dated 01.02.2024 and 09.11.2023 passed by the Income Tax Officer (R3). The petitioner's counsel stated that the petitioner could not contest proceedings before R2 due to issues with his Chartered Accountant, leading to an ex-parte order. The petitioner requested an opportunity to submit a reply and contest the proceedings afresh. The petitioner also stated that the appeal filed in Form No. 35 would be unconditionally withdrawn and requested directions to adjust amounts already recovered.

What were the issues?

1. Whether the assessment order dated 24.03.2023 and demand notice dated 24.03.2023 passed by the Assessing Officer (R2) should be quashed by issuing a writ in the nature of certiorari. 2. Whether a writ in the nature of mandamus should be issued directing the Commissioner of Income Tax (Appeals) (R1) to dispose of the petitioner's appeal within three months and to refrain from making any demand until then. 3. Whether the order dated 01.02.2024 passed by the Income Tax Officer (R3) should be quashed by issuing a writ in the nature of certiorari. 4. Whether the order dated 09.11.2023 passed by the Income Tax Officer (R3) should be quashed by issuing a writ in the nature of certiorari. Assessee's Contentions: The petitioner could not contest proceedings before R2 due to issues with his Chartered Accountant, leading to an ex-parte order. An opportunity to submit a reply and contest proceedings should be granted. The appeal filed in Form No. 35 would be unconditionally withdrawn. Directions should be issued to adjust amounts already recovered pursuant to Annexure-H dated 09.11.2023. Revenue's Contentions: The petition lacks merit and is liable to be dismissed.

Which sections of the Income-tax Act were involved?

Section 226(3)

AI-generated summary — verify with the full judgment below

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NC: 2024:KHC:15373 WP No. 6645 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 6645 OF 2024 (T-IT) BETWEEN:

KABBATHI BOCHEGOWDA SHIVANNA AGE 50 YEARS S/O SRI K R BOCHE GOWDA, DOOR NO 112, KABBATHI, ANKAPURA, HASSAN TALUK, HASSAN DISTRICT - 573 120 …PETITIONER (BY SRI. MAHESH R UPPIN., ADVOCATE)

AND:

1.

COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS APPEAL CENTRE, ROOM NO 356, C R BUILDING, I P ESTATE, NEW DELHI – 110 002

2.

ASSESSING OFFICER NATIONAL FACELESS ASSESSMENT CENTRE, DELHI – 110 002

3.

INCOME TAX OFFICER WARD 1 AND TPS, AAYAKAR BHAVAN, 2ND STAGE, BELUR ROAD, HASSAN - 573 201 …RESPONDENTS (BY SRI.M DILIP., ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ASSESSMENT ORDER DT.24/03/2023 BEARING NO. ITBA/AST/S/147/2022-23/1051280785(1) PASSED BY THE R2 MARKED AS ANNEXURE-A AND THE DEMAND NOTICE

Digitally signed by VANDANA S Location: High Court of Karnataka

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NC: 2024:KHC:15373 WP No. 6645 of 2024

DT.24/03/2023 BEARING DIN AND NOTICE NO. ITBA/AST/S/156/2022/23-1051280855(1) ISSUED BY THE R2 MARKED AS ANNEXURE-B THE BY ISSUING A WRIT IN THE NATURE OF CERTIORARI & ETC.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER In this petition petitioner seeks the following reliefs: “WHEREFORE the Hon’ble Court be pleased to:-

i) Quash the Assessment Order dt:24-03-2023 bearing no.ITBA/AST/S/147/2022-23/1051280785(1) passed by the 2nd Respondent marked as ANNEXURE “A” and the Demand Notice dt:24-03-2023 bearing DIN & Notice No. ITBA/AST/S/156/2022/23-1051280855(1) issued by the 2nd Respondent marked as ANNEXURE “B” the by issuing a writ in the nature of certiorari.

OR IN THE ALTERNATIVE.

i) issue a writ in the nature of mandamus by directing the 1st Respondent to dispose off the appeal ANNEXURE “C” filed by the Petitioner in the e-portal within a period of three months and till the disposal of the said appeal, not to make any demand of income tax from the petitioner.

ii) Quash the Order dt:01-02-2024 bearing No. ITBA/COM/F/17/2023-24/1060397426(1) passed by the 3rd Respondent marked as ANNEXURE “K” by issuing a writ in the nature of certiorari;

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NC: 2024:KHC:15373 WP No. 6645 of 2024

iii) Quash the order dt:09-11-2023 bearing No. ITBA/COM/F/17/2023-24/1057826504(1) passed by the 3rd Respondent marked as ANNEXURE “H” by issuing a writ in the nature of certiorari; and

iv) grant such other relief as may be deemed fit to grant under the circumstances of the case in the interest of equity and justice.”

2.

Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that he had entrusted the matter to his Chartered Accountant who was not in a position to appear before the respondent No.2 – AO and contest the proceedings on behalf of the petitioner which ultimately culminated in the impugned exparte order being passed against the petitioner. It is submitted that if one more opportunity to be given in favour of the petitioner by setting aside the impugned order and remitting back the matter to respondent No.2 afresh for consideration in accordance with law, the petitioner would submit his reply/response along with documents and contest the proceedings. It is also submitted that the appeal filed by the petitioner in Form No.35 would be

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NC: 2024:KHC:15373 WP No. 6645 of 2024

unconditionally withdrawn by the petitioner. It is further submitted that necessary directions may be issued to the respondent to adjust the amount already recovered pursuant to Annexure – H dated 09.11.2023 issued under Section 226(3) of the IT Act, 1961. 4. Per contra, learned counsel for the respondents will support the impugned order and submit that there is no merit in the petition and the same is liable to be dismissed. 5. Though several contentions have been urged by both sides in support of their respective claims in the light of the specific assertion on the part of the petitioner that he could not contest the proceedings due to the matter being entrusted to the Chartered Accountant and due to bonafied reasons, unavoidable circumstances and sufficient cause, without expressing any opinion on the merits/demerits of the rival contentions, I deem it just and appropriate to adopt a justice oriented approach and in order to provide an opportunity to the petitioner, set aside the impugned order dated 24.03.2023 at Annexure – A and remit the matter back to the respondent No.2 – AO and issue further directions in this regard.

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NC: 2024:KHC:15373 WP No. 6645 of 2024

5.

In the result, I pass the following: ORDER

(i) Petition is hereby allowed.

(ii) The impugned order at Annexure – A and notice at Annexure – B both dated 24.03.2023, are hereby set aside.

(iii) The submission made on behalf of the petitioner that he would unconditionally withdraw the appeal is hereby placed on record.

(iv) The impugned notice at Annexure – H dated 09.11.2023 attaching Bank Account of the petitioner is hereby set aside subject to the condition that the amount already recovered by the respondents pursuant to Annexure – H shall be adjusted at the time of passing the fresh orders by the respondent No.2.

Sd/- JUDGE

DHA LIST NO.: 1 SL NO.: 22

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