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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION NO.4022/2021 (T–IT)
BETWEEN:
Ms.Latha Shivanna, Wife of Shri.Subbegowda Shivanna, Aged about 49 years, #480, 5th Main, 9th Cross, Dollars Colony, RMV 2nd Stage, Bengaluru – 560 094. ... Petitioner (By Sri.Gautam Shreedhar Bhardwaj, Advocate)
AND:
The Principal Commissioner of
Income Tax,
3rd Floor, Central Revenue Building,
Queens Road,
Bengaluru – 560 001.
Commissioner of Income Tax
(Appeals) – 11,
Room No.322, III Floor,
Central Revenue Building,
Queen’s Road,
Bengaluru – 560 001.
2 3. The Deputy Commissioner of
Income Tax,
Central Circle 2(2),
Central Revenue Building,
Queen’s Road,
Bengaluru - 560 001. …Respondents (By Sri.K.V.Aravind, Advocate)
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 29.01.2021 passed by the Commissioner of Income Tax (Appeals) II Annexed Annexure – A and etc.,
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:
ORDER
The petitioner has sought for issuance of Writ of Certiorari to quash the impugned order dated 29.01.2021 at Annexure-A.
It is submitted that an assessment order was passed with respect to the assessment year 2013-2014 as per the assessment order dated 31.12.2019. As against such order appeal was preferred before the Commissioner of Income Tax (Appeals). In the meanwhile, the petitioner has
3 sought to avail benefits under the Direct Tax Vivad Se Vishwas Act, 2020.
It is submitted that appeal came to be rejected by the Commissioner of Income Tax (Appeals) as per the order dated 29.01.2021 finding that appeal was not filed within the requisite time and there was no request for condonation of delay. Copy of the order is enclosed at Annexure-A.
The petitioner submits that in light of the dismissal of his appeal, admittedly the eligibility criteria as spelt out under Section 2 (a)(i) of the Direct Tax Vivad Se Vishwas Act, 2020 not being fulfilled there would not be any favourable consideration of his application and such apprehension requires to be taken note of as the scheme is time specific.
It is contended that the order passed at Annexure-A is also illegal insofar as the petitioner was
4 not notified as regards to the delay of one day as found by the Commissioner of Income Tax (Appeals) and if he was put on notice of delay of one day, he would have either satisfied the authority that the appeal was filed within time or would have filed an application seeking condonation of delay as has been attempted to be done by way of filing of the application at Annexure-Q which was filed on 05.02.2021.
In light of the requirement that the appeal should be pending as on the date of consideration of application by the authority concerned, petitioner submits that necessary orders be passed to set aside the order of dismissal of his appeal, to enable him to claim benefit under the scheme.
After hearing the learned counsel on both sides, it is clear that the order at Annexure-A dismissing the appeal on the ground of being time
5 barred i.e., filed without seeking condonation of delay of one day in filing the appeal acts to his prejudice.
It is to be noted that once the Appellate Authority were to find that appeal is to be dismissed on the ground that there is a delay of one day and no application for condonation of delay has been filed, the authority ought to have proceeded to put the petitioner on notice to enable him to take necessary steps and ought not to have defeated his substantive remedy of appeal on a technical ground. Clearly whenever an appeal is found to be defective the authority ought not to have proceeded to dismiss the appeal without providing an opportunity to the petitioner to rectify such defect which the petitioner has attempted to do by filing of application on 05.02.2021.
Accordingly, it could be stated that order passed is in violation of principle of natural justice. In
6 light of the discussion as above as petitioner has not been provided an opportunity to rectify the formal defect accordingly, the order at Annexure-A is set aside and appeal is remitted for fresh consideration by respondent No.2.
Accordingly, the petitioner’s application in Form- 1 pending before the authority at Annexure-J and Form-3 at Annexure-M is directed to be considered by the authority in accordance with law. If for any reason there are technical difficulties to process the application of the petitioner under the scheme, the petitioner may be called upon to submit fresh application in terms of the scheme so as to avail benefit under the scheme. Accordingly, the petition is disposed off.
Sd/- JUDGE NS