SHRI B.KUNHI AHMED vs PRINCIPAL COMMISSIONER OF INCOME TAX

Income Tax Appellate Tribunal, a

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE S. SUJATHA WRIT PETITION NO.51522 OF 2019 (T-IT)

BETWEEN:

Shri. B.Kunhi Ahmed Aged about 72 yerss, S/o. Late Sri. B.M.Hassan Haji, Hasnain Nadir, Opp. Father Muller’s Hospital, Deralakatte, Mangaluru-575018.

…Petitioner (By Sri. Thirumalesh M., Advocate)

AND:

Principal Commissioner of Income Tax,

C.R.Building, N.G.Road,

Attavara, Mangaluru-575001.

Asst. Commissioner of Income Tax,

Circle 2(1), C.R.Building, N.G.Road,

Attavara, Mangaluru-575001.

…Respondents (Sri. K.V.Arvind, Advocate)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 15.09.2017 passed by the Income Tax Appellate Tribunal, a Bench Bengaluru for the Asst. Year 2012-2013 and hold that the appeal be heard on merits afresh Annexure-B and etc.

This writ petition coming on for Preliminary Hearing this day, the Court made the following:

ORDER

The learned counsel Sri. K.V. Aravind accepts notice for the respondents.

The petitioner is assailing the order dated 15.09.2017 passed by the Income Tax Appellate Tribunal, A Bench, Bengaluru (‘ITAT’ for short) in ITA.No.386/BANG/2017 as well as the order dated 11.5.2018 and 29.03.2019 passed by the ITAT in Misc.Petition.No.94/BANG/2018 and Misc.Petition. No.374/BANG/2018 relating to the assessment year 2012-13 at Annexures ‘B’, ‘F’ and ‘H’ respectively.

The petitioner is an assessee under the Income Tax Act, 1961 (‘Act’ for short) and was assessed to tax under the Act, by the Deputy Commissioner of Income Tax, Central Circle, Mangalore, relating to the assessment year 2012-13. The petitioner has preferred

an appeal against this assessment order before the Commissioner of Income Tax (Appeals-2), Panaji and the appeal was dismissed on merits vide order dated 29.11.2016, against which the petitioner had preferred an appeal before the ITAT. It is the contention of the petitioner that owing to the defective notice, the petitioner was unable to appear before the Hon’ble ITAT on 15.09.2017; However the ITAT has passed a cryptic order dismissing the appeal preferred by the petitioner. Being aggrieved, the petitioner had filed Misc. petition for recalling the order dated 15.09.2017 with a delay, which came to be dismissed, pursuant to which another Misc. Petition No.374/BANG/2018 was preferred and the said Misc. petition also came to be dismissed. Hence the present writ petition.

The learned counsel for the petitioner would submit that an exparte order of the ITAT is not a speaking order. The assessee was not provided with

reasonable opportunity to appear and put forth his case before the ITAT. Hence Misc.Petition No.94/BANG/2018 was filed to recall the said order and the same came to be dismissed for the delay caused in filing the petition. Further Misc.Petition.No.374/BANG/2018 filed also has been dismissed. Reliance is placed on the decision of this court in the case of M/s. Karuturi Global Ltd., Vs. Deputy Commissioner of Income Tax, Circle- 4(1)(1), Kormangala, Bangalore-560034, in W.P.No.25597/2019(T-IT) (D.D. – 4th July, 2019).

The learned counsel for the Revenue would submit that it is well settled law that no Miscellaneous petition is maintainable against the order passed in Miscellaneous petition. Hence the order passed in Misc. Petition. No.374/BANG/18 rejecting the petition is justifiable. However, the order in Misc. Petition No.94/BANG/2018 requires to be considered by this court in view of the dismissal of the said petition as time barred.

Having heard the learned counsel for the parties and perusing the material on record, this court is of the considered view that there is considerable force in the submission of the learned counsel for the revenue in view of the miscellaneous petition No.94/2018 being dismissed as time barred. This court deems it appropriate to set aside the same in view of the law declared by this court in the case of M/s. Karuturi Global Ltd., referred to supra, where in, it is held that the remedy available to the assessee to seek for condonation of delay beyond the statutory period of limitation is only under Article 226 and 227 of Constitution of India. In the circumstances, where the Tribunal has dismissed the appeal as time barred, the writ jurisdiction is the appropriate remedy available to the petitioner.

Having regard to the aforesaid facts and circumstances of the case, this court finds it

appropriate to condone the delay in filing the miscellaneous petition in Misc. Petition No. 94/BANG/2018 and remand the matter to the ITAT to reconsider the matter on merits. Accordingly delay in filing the miscellaneous petition No. 94/BANG/2018 is condoned. Annexure ‘F’ dated 11.05.2018 is quashed and the matter is restored to the file of ITAT to re- consider the same on merits. An appropriate decision shall be taken by the ITAT in an expedite manner after hearing the parties. In view of the Misc. Petition No.94/BANG/2018 being restored to the file of the ITAT, dismissal of the petition in Misc. Petition No.374/BANG/2018 by the ITAT cannot be held to be unsustainable.

Writ petition stands disposed of accordingly.

Sd/- JUDGE

SHRI B.KUNHI AHMED vs. PRINCIPAL COMMISSIONER OF INCOME TAX