M/S PANCHMUKHI BUILDERS, vs. INCOME TAX OFFICER,

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 29th DAY OF JANUARY 2015 BEFORE THE HON’BLE MR.JUSTICE A.N. VENUGOPALA GOWDA Writ Petition Nos.100789-100790/2015 (T-IT) BETWEEN M/S PANCHMUKHI BUILDERS, 299/6, VIMAL, GOOD SHED ROAD, BELGAUM, PAN NO.AAJFP2967L, REPRESENTED BY ITS PARTNER, KIRAN S/O MARUTIRAO JADHAV AGE: 42 YEARS, OCC: BUSINESS, R/O. M/S. PANCHMUKHI CONSTRUCTIONS, 299/6, VIMAL, GOODSHED ROAD, BELGAUM. ...PETITIONER (BY SRI. SANGRAM S.KULKARNI, ADVOCATE) A N D 1. INCOME TAX OFFICER, WARD 1(1), OPP CIVIL HOSPITAL BELGAUM 2. COMMISSIONER OF INCOME TAX (APPEALS) OPP. CIVIL HOSPITAL BELGAUM. ...RESPONDENTS (BY SRI. Y.V. RAVIRAJ, ADVOCATE ) THESE PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ANNEXURE-F DATED: 26.12.2014, PASSED BY THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI IN S.A.NO.28/PNJ/2014 (IN ITA 268/PNJ/2014), & S.A. NO.29/PNJ/2014. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

: 2 : ORDER Appeals filed accompanied by applications for grant of stay having been found to be defective, opportunity was granted by the Tribunal, to remove the defects. Advocate for the petitioner sent a communication and sought time/adjournment, to remove the defects, on account of he being unable to sit and work due to back problem. The Tribunal having found, that no ground is made out to grant the adjournment and being of the opinion that no purpose would be served by keeping the defective applications pending, in the absence of the appellant and his learned advocate, dismissed the applications filed seeking stay of the impugned assessment orders. Assailing the said order, these writ petitions were filed. 2. Shri Sangram S.Kulkarni, learned advocate, contended that the Tribunal has acted with undue haste in passing the impugned order. He submitted that there being denial of reasonable opportunity and the impugned order being perverse, interference is called for.

: 3 : 3. Shri Y.V.Raviraj, learned advocate for the respondents, by taking me through the statement of objections filed, submitted that in the facts and circumstances of the case, no interference is called for. He submitted that the notified defects having not been removed, despite reasonable opportunity having been granted, the Tribunal being left with no alternative has passed the impugned order. He made submissions in support of the impugned order. 4. Perused the writ record and considered the rival contention. Point for consideration is, whether the petitioner is entitled to any relief? 5. Stay applications were filed along with the appeals and the defective memos were issued to the appellant, to remove the defects. Though, time was extended, defects having not been removed, the impugned order was passed. 6. There is no dispute that a communication was sent by the advocate for the appellant/petitioner, enclosing a

: 4 : medical certificate in proof of he being sick and on account of the same, not being able to attend the Tribunal and take steps to cure the notified defects. The Tribunal, without taking into consideration the reason stated in the communication sent seeking adjournment and also the annexed medical certificate, has passed the impugned order, whereby, the said applications were dismissed. 7. If the advocate for the petitioner/appellant had not sought adjournment on medical grounds, the Tribunal would have been justified in passing the impugned order. Since adjournment was sought on the ground of illness of the advocate, which was certified by a medical practitioner, the Tribunal has acted with material irregularity in not taking into consideration the said fact and in passing the impugned order. 8. The Tribunal, if, had dismissed the said applications for non-prosecution, still the impugned order could not have been interfered with. However, the Tribunal having held that the assessee could not convince that there was a

: 5 : prima facie case and do not have any liquid resources, i.e. decided the applications on merit, in the absence of the appellant and his advocate, there is a need to interfere. There is lack of application of mind and focused consideration. Except the sentence, noticed supra, there is no reasoning. 9. In BOARD OF TRUSTEES OF MARTYRS MEMORIAL TRUST AND ANOTHER Vs. UNION OF INDIA AND OTHERS, reported in (2012)10 SCC 734, Apex Court has held as follows: “ 22. Brevity in judgment writing has not lost its virtue. All long judgments or orders are not great nor brief orders are always bad. What is required of any judicial decision is due application of mind, clarity of reasoning and focused consideration. A slipshod consideration or cryptic order or decision without due reflection on the issues raised in a matter may render such decision unsustainable. Hasty adjudication must be avoided. Each and every matter that comes to the court must be examined with the seriousness it deserves.” 10. There is lack of application of mind. Non- consideration of the prayer for adjournment sought on medical ground by the advocate on record is apparent. There is denial of reasonable opportunity. In the

: 6 : circumstances of the case, the impugned order being irrational, is liable to be interfered with. In the result, these writ petitions are allowed and the impugned order is quashed. Petitioner is permitted to file fresh applications for grant of stay, if so advised, within a period of two weeks from today. Petitioner shall not seek unnecessary adjournment and shall extend ready co-operation to decide the stay applications and also the main appeals with expedition. The Tribunal is directed to decide the appeals, with expedition and within a period of three months from the next hearing date. No costs. SD/- JUDGE Kms