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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF JUNE, 2013 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NOS.4877-4880/2013 (T-IT) BETWEEN:
Udupi Taluk Protestant Christian,
Credit Co-operative Society Ltd.,
Grace Plaza, 76 Badagabettu,
Bailur, Udupi-576 101
Rep. by its General Manager,
Mr. Ganesh Sherigar.
Guru Nityananda Credit
Co-operative society Ltd.,
Bailoor Complex,
P.P.C Road, Udupi-576 101
Rep. by its Secretary
Mr. Rajesh S. Shetty,
Shree Krishna Industrial
Co-Operative Society Ltd.,
Vadiraja Complex,
Old Post Office Road,
Udupi-576 101
Rep. by its Chief Executive
Mr. Shashidhara Maiya K
The Tappers Service
Co-Operative Society Ltd.,
Near Bus stand,
Kota, Udupi-576 101
Rep. by its Secretary
Mr. Jagadish Kemmannu.
…Petitioners
(By Sri. Mahesh R. Uppin, Advocate)
AND:
Union of India,
By its Secretary to Government,
Ministry of Finance,
Raisina Hill, New Delhi-110 001.
Regional Director,
Reserve Bank of India,
Urban Banks Division,
Nrupathunga Road,
Bangalore-560 001.
Income Tax Officer,
Ward-I,
Udupi-576 101.
Registrar of Co-operative
Societies in Karnataka,
Ali-Askar Road,
Bangalore-560 001.
…Respondents
(By Sri. K.V.Aravind, Advocate for R-1 & R-3)
These Writ Petitions are filed Under Articles 226 & 227 of the Constitution of India with a prayer to quash the assessment order dated 31.12.2012 passed by R-3 marked as Annexure-B, and the consequential notices dated 31.12.2012 issued by R-3 vide Annexure-F & K and dated 31.12.2012 passed by R-3 vide Annexure-C and the consequential demand notices dated 31.12.2012 issued by R-3 vide Annexure-G and L, the assessment order dated 31.12.2012 passed by R-3 vide Annexure-D and the consequential demand notices dated 31.12.2012 issued by R-3 vide Annexure-H and M and the assessment order dated 31.12.2012 passed by R-3 vide Annexure-E and the consequential notices dated 31.12.2012 issued by R-3 vide
3 Annexure-J and N by issuing a Writ in the nature of certiorari.
These petitions are coming on for preliminary hearing this day the court made the following:
ORDER Heard the learned Advocates appearing for parties and by consent it is taken up for final disposal.
Petitioner is seeking for quashing of order of assessment at Annexures-B, C, D and E, consequential demand notices and penalty notice issued, contending interalia that petitioner is entitled to seek deduction under Section 80P(2) of the Income Tax Act, 1961, by relying upon the orders passed by Income Tax Appellate Tribunal, Bangalore Bench, Ahmedabad Bench and Panaji Bench vide Annexures – P and Q.
Sri K.V.Aravind, learned panel counsel appearing for respondent would seriously contend that deduction sought for by petitioner would not clarify and contends that such deduction claimed by petitioner-society qualifies for deduction under Section 80P(2) of the Income Tax Act, 1961, is mixed question of law and fact and same requires to be
4 examined by statutory authorities as provided under the Act and petitioner as such ought to exhaust the remedy of appeal.
Sri Mahesh R. Uppin, learned counsel for petitioner also fairly does not dispute the fact that order of assessment is an appealable order, but contends that in view of law laid down by the Highest Court relied upon by the jurisdictional Tribunals, petitioner should not be forced to approach the very same authorities for redressal of its grievances and as such it would be an exercise in futility.
Undisputedly, against an order of assessment passed by the ITO, appeal is provided under Section 246A of the Income Tax Act, 1961, and without taking recourse to available alternate and efficacious remedy under Act, petitioner would not be entitled to invoke the extraordinary jurisdiction of this Court. Having regard to the facts and circumstances of this case, I am of the view that matter requires factual adjudication and alternate remedy being available to petitioner is not only efficacious but also adequate. Therefore, I decline to entertain this writ petition.
5 Accordingly, writ petition is dismissed reserving liberty to petitioner to file an appeal challenging impugned assessment orders.
At this juncture, Sri. Mahesh R. Uppin, learned counsel appearing for petitioner submits that assessee may be permitted to file necessary appeals and he also prays for issuance of direction to the appellate authority not to raise the issue of delay on the ground that assessee has been prosecuting his just cause before this Court. Placing his submission on record, it is made clear that petitioner would be at liberty to file an appeal challenging the impugned assessment orders and if petitioner files such appeals within a period of three weeks from today, appellate authority is directed to dispose of the appeal expeditiously without raising the issue of delay. All contentions on merits are kept open.
No costs.
Sd/- JUDGE