HOGETHOPPALU KOTRESHA SETTY SAROJAMMA vs. THE INCOME TAX OFFICER

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF OCTOBER, 2021 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV REVIEW PETITION NO.185/2021 IN WRIT PETITION NO.5065/2018 (T-IT) Between: Hogethoppalu Kotresha Setty Sarojamma, W/o Mr. H. Kotresha Setty, Aged about 68 years, Residing at Basaveshwara Complex, M.H. Road, Chitradurga - 577 501.

… Petitioner (By Sri Harish V.S., Advocate) And: The Income Tax Officer, Ward-2, Tamatkal Road, Medehalli, Chitradurga - 577 502.

… Respondent (By Sri K.V. Aravind, Advocate)

2 This Review Petition is filed under Order 47 Rule 1 of CPC, praying to review the judgment dated 20.02.2018 passed by this Hon'ble Court in WP No.5065/2018 by indicating the time limit for filing the appeal as 31.01.2020 and consequently granting leave to the petitioner to file an application under the Vivad Se Vishwas Scheme, so as to meet the ends of justice. This Review Petition coming on for orders this day, the Court, made the following: ORDER

Accepting the reasons stated in the memorandum of facts, I.A.1/2021 filed for condonation of delay in filing the review petition is allowed.

Petitioner has filed the present petition seeking for review of the order dated 20.02.2018 passed by this Court in W.P.No.5065/2018 and has sought for necessary permission to file an application under the "Vivad Se Vishwas Scheme". 2. This Court by order dated 20.02.2018 had relegated the petitioner to avail of the alternative remedy by way of first appeal under Section 246 of the Income Tax Act, 1961 and accordingly, disposed off the petition.

3 3. Learned counsel for the petitioner has contended that he intends to avail of the benefit of Vivad Se Vishwas Scheme and the order passed in W.P.No.5065/2018 though had relegated the petitioner to avail of the alternative remedy, due to certain bonafide reasons, alternative remedy was not availed and accordingly, in the present circumstances if the petition were to be pending, petitioner would have been entitled to avail of the benefit under the Vivad Se Vishwas Scheme. Petitioner further submits that under similar circumstances as that of the petitioner herein, the Co-ordinate Bench in W.P.No.30960/2016 and the Division Bench in W.A.No.219/2015 had set aside the proceedings of the Assessing Authority despite the availability of the alternative remedy and it is contended that in light of the settled position that alternative remedy is not an absolute bar if circumstances are made out for invocation of writ jurisdiction, matter ought to be reviewed and the writ petition be entertained.

4 4. It is to be noted that the petitioner has failed to avail the benefit of invoking the alternative remedy despite disposal of the writ petition. In the present circumstances, petitioner is almost remediless. The fact that Vivad Se Vishwas Scheme does provide for an option for the petitioner to claim its benefit, but it requires the present proceedings to be restored and further orders to be passed, is an aspect of consideration. 5. Taking note of the peculiar facts of the case, the contention of the petitioner that in similar factual matrix, the Co-ordinate Bench had entertained the writ despite availability of alternative remedy and taking note of the prayer that the petitioner seeks to invoke the benefit under the Vivad Se Vishwas Scheme, case is made out in the interest of justice to review the order dated 20.02.2018 passed in W.P.No.5065/2018. 6. Accordingly, review petition is allowed. Writ petition stands restored.

The undertaking of the petitioner that in the event he is unsuccessful in claiming the benefit under the Vivad Se Vishwas Scheme, he would voluntarily relegate himself to invoke the substantive remedy and continue the proceedings before this Court is taken note of. Sd/- JUDGE VP