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- 1 - IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.19964/2021 (T-IT)
BETWEEN:
SHRI SYED ALLEMULLAH, @ SYED ALEEM S/O. LATE S.A. JALEEL AGED 67 YEARS, PROP: M/S. S.A. DEVELOPERS, NO.13/14, 7TH CROSS, ALEEM STREET, PANDURANGA NAGAR BANNERGHATTA ROAD, BANGALORE - 560 069 BENEFIT OF SENIOR CITIZENSHIP NOT CLAIMED
…PETITIONER
(BY SRI. M.V.SESHACHALA, SR. COUNSEL, FOR SRI. ARAVIND V CHAVAN, ADV.)
AND:
1 . INCOME TAX OFFICER CIRCLE-4(3)(1) BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU - 560 095.
2 . ASST. COMMISSIONER OF INCOME TAX CIRCLE-4(3)(1) BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK,
- 2 - KORAMANGALA, BENGALURU - 560 095.
3 . DY. COMMISSIONER OF INCOME TAX, CIRCLE-7(2)(1), BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU - 560 095.
4 . PRL. COMMISSIONER OF INCOME TAX 4, BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU - 560 095.
…RESPONDENTS
(BY SRI. E.I. SANMATHI, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ORDER PASSED IN ITA NO.677/2017 DTD 8.4.2021 FOR A.Y. 2011-12 WOULD BE APPLICABLE TO THE FACTS OF THE PRESENT CASE IN A.Y. 2012-13 AND QUASH THE EXPARTE ASSESSMENT ORDER DTD 29.9.2019 PASSED R-2 ANNEXURE-H.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
- 3 - ORDER
In this petition, the petitioner has sought for the following reliefs: "a. Issue a Writ of certiorari or such other writ or declaration that the order passed in ITA.No.677/2017 dated 08.04.2021 vide Annexure-K for A.Y. 2011-12 would be applicable to the facts of the present case in A.Y. 2012-13 and quash the exparte assessment order dated 29.09.2019 passed by second respondent Annexure-H.
b. Consequently, issue a writ of certiorari to set aside the notice dated 14.11.2018 issued u/s. 148 of the IT Act to reopen assessments Annexure-F issued by first respondent bearing F.No.ABOPA2618K/ITO-W- 4(3)(1)/2018-19.
c. Issue such other Writ or direction as this Hon'ble Court deem fit to grant in the facts and circumstances of the present case."
Heard learned Senior Counsel for the petitioner and learned counsel for the respondents. Perused the material on record.
- 4 - 3. Learned Senior Counsel for the petitioner, in addition to reiterating the various contentions urged in the petition and referring to the documents produced by the petitioner, invited my attention to the following decisions of this Court: 1) ITA No.677/2017 Syed Aleemullah @ Syed Aleem vs. Dy. Commissioner of Income-Tax dated 08.04.2021. 2) ITA No.393/2014 The Commissioner of Income- Tax vs. M/s. S N Builders & Developers dated 07.01.2021. 3) ITA No.355/2009 The Commissioner of Income-Tax vs. M/s. G.R. Developers dated 29.02.2012. 4) ITA No.32/2010 The Commissioner of Income-Tax vs. M/s. SJR Builders dated 19.03.2012. 5) Principal Commissioner of Income Tax and Another vs. Oceanus Dwellings P. Ltd. (2017) 395 ITR 0376 (Karn). 6) Commissioner of Income Tax vs. Arun Excello Foundations (P.) Ltd. (2013) 212 TAXMAN 0342 (Mad). 7) Commissioner of Income Tax vs. Brigade Enterprises Ltd. (2020) 429 ITR 0511 (Karn). 8) ITA No.763/2009 CIT vs. M/s. Brigade Enterprises dated 29.02.2012. 9) GKN Driveshafts (India) Ltd. vs. Income Tax Officer & Ors. (2003) 259 ITR 0019 (SC).
- 5 - It is submitted that a perusal of the aforesaid decisions passed by this Court will indicate that the impugned assessment order is contrary to the ratio of the above said decisions and consequently the impugned assessment order deserves to be set aside and the matter is to be remitted back to respondent No.1-Assessing Authority for reconsideration afresh.
Learned Senior Counsel also submits that though the petitioner preferred an appeal in appeal No.CIT(A)Bengaluru-4/10298/2019-20 academic year 2012- 13 before the Appellate Authority, in the event the impugned order to be set aside, the petitioner would withdraw the said appeal if reasonable time granted to the petitioner to do so. Learned Senior Counsel also submits that the procedure prescribed under Section 148 of the Income Tax Act, 1961 has not been followed before passing the impugned assessment order as held by Hon’ble Apex Court in the case of GKN DRIVESHAFTS (INDIA) LTD. vs. INCOME TAX OFFICER & ORS. (2003) 259 ITR 0019 (SC) and the same would vitiate the impugned order also.
- 6 - 5. Per contra, learned counsel for the respondents submits that in view of the petitioner already had availed the equally efficacious and alternative remedy by preferring an appeal before the Appellate Authority as admitted by the learned Senior Counsel, the present petition is not maintainable and the same is liable to be dismissed. It is also submitted that the impugned assessment order is perfectly just and proper and the same does not warrant interference by this Court in this present petition. Learned counsel further submits that though the respondent No.1-Assessing Authority had issued the requisite notice to the petitioner, the Assessing Authority so far has not passed preliminary order as held by the Hon’ble Apex Court in the aforesaid decisions and it is necessary that the direction to be issued to the respondent No.1 to pass an preliminary order before proceeding further in the matter.
As rightly contended by the learned Senior Counsel for the petitioner, the issue involved in the present petition is with regard to applicability of Section 80-IB(10) of the Income Tax Act, 1961 insofar as the petitioner is concerned. The material on record discloses that in respect of
- 7 - assessment year 2012-2013, the Hon’ble Division Bench of this Court in ITA.No.677/2017 in relation to two other residential apartments wherein flat No.B-1004 and flat No.B-904 with the same residential complex constructed by the petitioner-assessee has remitted the matter back to the respondent No.1-Assessing Authority for reconsideration afresh in the light of aforesaid decisions passed by this Court. Under these circumstances, in view of the undisputed fact that the present petition relates to flat No.B-1003 and flat No.B-903 for the assessment year 2014-15 in relation to the same petitioner-assessee and in respect of the same residential apartment complex, in order to avoid conflicting orders/decisions, I deem it just and appropriate to set aside the impugned assessment order and remit the matter back to respondent No.1/Assessing Authority for reconsideration afresh bearing in mind the aforesaid decisions of this Court.
Insofar as contentions urged by the learned counsel for the respondents that equally efficacious and alternative remedy has already been availed by the petitioner by filing the statutory appeal before the Appellate Authority, in view of the submission made by the learned Senior Counsel
- 8 - for the petitioner that the petitioner would withdraw the said appeal if reasonable time is granted, is placed on record. The said contention urged by the learned counsel for the respondents can be accordingly answered by directing the petitioner to withdraw the said appeal within a period of three weeks from the date of receipt of copy of this order.
In the result, I pass the following order:
a) Petition is allowed. b) Impugned assessment order at Annexure-H dated 29.09.2019 is hereby quashed. The matter is remitted back to respondent No.1 for reconsideration afresh bearing in mind the aforesaid decisions of this Court referred to a body of this order as well as the procedure laid down by the Hon’ble Apex Court in the case of GKN DRIVESHAFTS (INDIA) LTD. vs. INCOME TAX OFFICER & ORS. (2003) 259 ITR 0019 (SC).
All rival contentions between the parties including the applicability/non-applicability of the aforesaid decisions are kept open, to be adjudicated upon by the respondent No.1- Assessing Authority.
- 9 - The petitioner is hereby directed to withdraw the appeal in appeal No.CIT(A)Bengaluru-4/10298/2019-20 Academic Year 2012-13 before the Appellate Authority within a period of three weeks from the date of receipt of copy of this order.
Sd/- JUDGE
SMJ