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- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE 2022
BEFORE
THE HON’BLE MR. JUSTICE M.I.ARUN
WRIT PETITION No.8630 OF 2022 (T-IT)
BETWEEN:
SRI. SHANTHAKUMAR MALAGI, S/O LATE HANUMANTHAPPA, AGED 64 YEARS, R/AT. VILLA NO.78, PRESTIGE OASIS, DODDABALLAPUR ROAD, ADDE VISHWANATHAPURA, BENGALURU – 560 064.
... PETITIONER
(BY SRI.M.V.SESHACHALA, SENIOR ADV. FOR SRI.ARAVIND V. CHAVAN, ADV.)
AND:
ASSESSING OFFICER, NATIONAL FACELESS ASSESSMENT CENTRE, NO.412-413, 1ST FLOOR, OPP. METRO PILLAR NO.793, DWARKA MOR, NEW DELHI – 110 059.
JURISDICTIONAL ASSESSING OFFICER, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE – 2(3) (1), BMTC BUILDING, 80 FEET ROAD, KORAMANGALA, BENGALURU – 560 095.
PRINCIPAL COMMISSIONER OF INCOME TAX – 2,
- 2 - BMTC BUILDING, 80 FEET ROAD, KORAMANGALA, BENGALURU – 560 095. … RESPONDENTS
(BY SRI.K.V.ARAVIND, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ASSESSMENT ORDER DATED 27.03.2022 BEARING NO.ITBA/AST/S/147/2021-22/1041772175(1) PASSED BY THE 1ST RESPONDENT AT ANNEXURE – Q FOR A.Y.2017-18 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Aggrieved by the assessment order dated 27.03.2022 bearing DIN No.ITBA/AST/S/147/2021-22/1041772175(1) vide Annexure – Q to the writ petition, the instant writ petition is filed.
The impugned assessment order passed in respect of petitioner pertains to the assessment year 2017-2018. The case of the petitioner is that there are procedural irregularities committed by the respondents resulting in failure of opportunity being given to the petitioner to present his case, consequent to which, the impugned order
- 3 - has been passed. On the said ground, the said impugned order is sought to be set aside.
It is noticed that initially assessment order under Section 143 (3) of Income Tax Act, 1961 (hereinafter referred to as ‘the Act’ for short) was passed on 26.12.2019 wherein, the purchase and development of the property by the petitioner was referred to District Valuation Officer to ascertain the fair market value of the asset and upon receipt of the valuation report, notice under Section 148 of the Act was issued and the assessment was re-opened. The petitioner filed his objections. There was a preliminary order as to the jurisdiction on 17.12.2021 bearing DIN No.ITBA/AST/F/17/2021-22/1037911763(1) (vide Annexure – K to the writ petition). It is noticed that the said order was passed by placing reliance of the decision of this Court in the case of Commissioner of Income Tax and others vs. Rinku Chakraborthy reported in (2011) 242 CTR 425 (Kar). It is submitted that the said judgment has been subsequently over ruled by this Hon’ble Court in the case of Dell India Private Limited vs. Joint
- 4 - Commissioner of Income Tax (LTU) and others reported in (2021) 432 ITR 212 (Kar).
The said aspect has not been disputed by the either of the parties. Thus, the order passed at Annexure – K to the writ petition itself requires to be set aside.
In respect of jurisdiction, a draft assessment order is passed dated 25.03.2022. It is the contention of the petitioner that the same was not provided to him and he could not file objections upon the said draft assessment order. However, pursuant to passing of the said draft assessment order, on the ground that no objection was filed, the said assessment order was passed on 25.03.2022 vide Annexure – Q to the writ petition which is impugned herein.
It is contended by the petitioner that pursuant to passing of draft assessment order, the same was not made available to him and he was denied opportunity for filing objections to it. However, during the course of the arguments both counsel for the assessee and revenue
- 5 - submit that the initial preliminary order as to the jurisdiction dated 17.12.2021 vide Annexure – K to the writ petition has been passed placing reliance upon the decision of this Hon’ble Court in the case of Commissioner of Income Tax and others vs. Rinku Chakraborthy reported in (2011) 242 CTR 425 (Kar) as stated above and the said order itself is bad for placing reliance upon the judgment that is over ruled by this Court and relevant order is required to be passed based upon the decision of this Court in the case of Dell India Private Limited vs. Joint Commissioner of Income Tax (LTU) and others reported in (2021) 432 ITR 212 (Kar). However, it is contended that the order dated 17.12.2021 bearing DIN No.ITBA/AST/F/17/2021-22/1037911763(1) vide Annexure K to the writ petition is not in challenge. This being a proceedings under Article 226 of the Constitution of India, this Court is empowered to mould the relief to meet the ends of justice.
For the said reasons, the writ petition deserves to be allowed and matter requires to be remanded back to the
- 6 - authorities with a direction to pass necessary orders in accordance with law. Hence, the following:- ORDER i) The order dated 17.12.2021 bearing DIN No. ITBA/AST/F/17/2021-22/1037911763(1) vide Annexure – K to the writ petition is hereby set aside. Consequently, the draft assessment order dated 25.03.2022 and the final assessment order dated 27.03.2022 bearing DIN No.ITBA/AST/S/147-2021- 22/1041772175(1) vide Annexure – Q to the writ petition are hereby set aside. ii) The matter is remanded back to assessing officer to consider the case of the petitioner on merits from the stage of disposal of objections to the re-opening of assessment and pass appropriate order in accordance with law. iii) The writ petition is disposed of accordingly.
Sd/-
JUDGE
MH/-