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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.19928/2021 (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. …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 . 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 DATED 08.04.2021 FOR A.Y.2011-12 WOULD BE APPLICABLE TO THE FACTS OF THE PRESENT CASE IN A.Y.2014-15 AND QUASH THE ASSESSMENT ORDER DATED 27.12.2016 PASSED BY R1 ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
- 2 - ORDER
In this petition, petitioner seeks quashing of the impugned assessment order dated 27.12.2016 at Annexure-D passed by respondent No.1 in relation to the Assessment Year 2014-15 and for other 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-E for A.Y. 2011-12 would be applicable to the facts of the present case in A.Y. 2014-15 and quash the assessment order dated 27.12.2016 passed by first respondent Annexure-D.
b. 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 Sri.M.V.Seshachala, learned Senior Counsel for the petitioner and learned counsel for the respondents. Perused the material on record.
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
- 3 - 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.
It is submitted that a perusal of the aforesaid decisions passed by this Court will indicate that the impugned assessment order passed by respondent No.1 is contrary to the ratio of the above said decisions and consequently the
- 4 - 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 further submits that due to bonafide reasons, unavoidable circumstances and sufficient cause, the petitioner was not in a position to challenge the order within a reasonable time. Having regard to the fact that in respect of the very same petitioner- assessee and in respect of the different financial year, this Court has remitted back the matter to respondent No.1- Assessing Authority and similar questions of law and fact are involved in all matters, the explanation offered by the petitioner for not filing the present petition within reasonable time deserves to be accepted.
Per contra, learned counsel for the respondents submits that the petition is barred by delay and latches. 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.
- 5 - 6. 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 petitioner is concerned. The material on record discloses that in respect of assessment year 2011-2012, 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
- 6 - Authority for reconsideration afresh bearing in mind the aforesaid decisions of this Court.
It is contended by the learned Senior Counsel for the petitioner that due to bonafide reasons, unavoidable circumstances and sufficient cause, the petitioner was not in a position to challenge the order within a reasonable time; having regard to the fact that in respect of the very same petitioner-assessee and in respect of the different financial year, this Court has remitted back the matter to respondent No.1-Assessing Authority and similar questions of law and fact are involved in all matters, the explanation offered by the petitioner for not filing the present petition within reasonable time deserves to be accepted.
In the result, I pass the following order: a) Petition is allowed. b) Impugned assessment order at Annexure-D dated 27.12.2016 is hereby quashed. c) The matter is remitted back to respondent No.1 for reconsideration afresh bearing in mind the aforesaid
- 7 - decisions of this Court referred to in the body of this order.
All rival contentions between the parties including the applicability/non-applicability of the aforesaid decisions are kept open, to be adjudicated upon by respondent No.1- Assessing Authority.
Sd/- JUDGE
SMJ