CHEENAMADA HOUSE SHANITHA vs ADDITIONAL/ JOINT/ DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX

1 IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 16TH DAY OF DECEMBER, 2022

BEFORE

THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

WRIT PETITION No.24683 OF 2022 (T-IT)

BETWEEN:

CHEENAMADA HOUSE SHANITHA W/O MOHAMMED SADIQ AHAMED AGED ABOUT 42 YEARS 21-3-99/19, ISZOR RESIDENCY 3RD MAIN, PANDESHWAR MANGALORE-575 001 ...PETITIONER (BY SRI.R.CHANDRASHEKAR & SRI.KASHINATH KALMATH, ADVOCATE)

AND:

1 . ADDITIONAL / JOINT / DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX OFFICER NATIONAL FACELESS ASSESSMENT CENTRE DELHI-110 001

2 . INCOME TAX OFFICER WARD 2(1), C.R. BUILDING, N.G. ROAD, ATTAWARA MANGALORE -575 001

…RESPONDENTS (BY SRI M.DILIP, ADVOCATE)

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF ASSESSMENT DATED 10.03.2022 PASSED U/S 144 R.W.S.147 R.W.S 144B OF ACT NO.ITBA/AST/S/147/2021-22/1040542725(1) BY R1 (ANNEXURE-C) TO THIS WRIT PETITION AND ETC.

THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

In this petition, petitioner has sought for the following reliefs: a. To issue a writ of certiorari or in the nature of writ of certiorari quashing the order of assessment dated 10.03.2022 passed u/s.144 r.w.s. 147, r.w.s.144B of Act No.ITBA/AST/S/147/2021-22/1040542725(1) by first respondent (ANNEXURE – C) to this Writ Petition in the interest of justice; b. To issue a writ of certiorari or in the nature of writ of certiorari quashing the order of penalty dated 12.09.2022 passed u/s. 271AAC(1) of the Act passed by the Second Respondent for the assessment year 2017-18 dated 12.09.2022 No. ITBA/PNL/F/ 271AAC(1)/2022-23/1045415386(1) (ANNEXURE – E) to this Writ Petition in the interest of justice. c. This Hon’ble Court may be pleased to issue such other writ or writs as this Hon’ble Court deem it fit in the petitioner’s case in the interest of justice.

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

In addition to reiterating the various contentions urged in the memorandum of petition and referring to the documents produced thereto, learned

3 counsel for the petitioner submits that as can be seen from the impugned order, the same is an ex-parte order passed in the absence of 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 inasmuch as the accounts, e-mail IDs of the petitioner were operated by his accountant and due to Covid-19 pandemic, the said account was not operated for sometime in view of password being forgotten by the accountant and as such, the said notice, which was sent to the said e-mail I.D. was not communicated or brought to the notice of the petitioner 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 at Annexures – C and

4 E are set aside and the matter 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.

A perusal of the impugned order at Annexure – C 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

5 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 orders at Annexures – C and E dated 10.03.2022 and 12.09.2022, respectively, are hereby quashed. (ii) Matter is remitted back to the respondents for reconsideration afresh. (iii) Liberty is reserved in favour of the petitioner to file its reply, pleadings, documents, etc., before the respondents, who shall consider the same and pass appropriate orders in accordance with law.

(iv) Respondents are also directed to provide / allow an opportunity of

6 personal hearing to the petitioner before passing appropriate orders as stated supra.

(v) All rival contentions are kept open and no opinion is expressed on the same.

SD/- JUDGE

CHEENAMADA HOUSE SHANITHA vs. ADDITIONAL/ JOINT/ DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX