M/S. SARAVANA CONSTRUCTIONS PVT LTD., vs ASSISTANT COMMISSIONER OF INCOME TAX

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12TH DAY OF DECEMBER, 2013 BEFORE

THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

WRIT PETITION NOS.50527-529 OF 2013 (T-IT)

BETWEEN:

M/S. SARAVANA CONSTRUCTIONS PVT LTD., NO 155B, 4TH MAIN HAL II STAGE, DEFENCE COLONY BANGALORE 560 038 REP BY ITS MANAGING DIRECTOR SRI L SAMBASHIVA REDDY ... PETITIONER

(BY SRI.SESHACHALA M V, ADVOCATE)

AND:

ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 12(3) NO 14/3-A, 4TH FLOOR RASHTROTHANA BHAVAN NRUPATHUNGA ROAD BANGALORE 560 001

COMMISSIONER OF INCOME TAX III C R BUILDING, QUEENS ROAD BANGALORE 560 001

COMMISSIONER OF INCOME TAX (APPEALS ) VI

2 C R BUILDING, QUEENS ROAD, BANGALORE 560 001 ... RESPONDENTS

(BY SRI.E SANMATHI INDRAKUMAR, ADVOCATE)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS ALL DT.17.12.2012 IN RESPECT OF ASSESSMENT YEARS 1998-1999, 1999-2000 AND 2000-2001 PASSED BY THE R-1 VIDE ANNX-G1, H & J TO THE W.P. AND ETC.

THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

Order of the 1st respondent-Assessing Officer dated 17.12.2012 in proceedings bearing No.SA- 104/OGE/C-12(3)/12-13 for the assessment years 1998-99, 1999-2000 and 2000-01 (Annexures-G1, H and J respectively) are assailed in these petitions.

3 2. Briefly stated, the facts are that the petitioner which is engaged in the business of civil constructions had filed its original return of income under Section 139 of the Income Tax Act (hereinafter referred to as the ‘Act’, for short) in respect of the aforesaid assessment years.

The respondent- Department had conducted a search on 08.10.2003 in the premises of the assessee wherein certain documents were found and it was inferred that the assessee had not declared certain income in the original return of the income. The Department issued notices in that regard and passed orders on 24.03.2006 in respect of each of three assessment years. Being aggrieved by those orders, petitioner preferred appeals before the Commissioner of Income Tax (Appeals)-VI, Bangalore.

The Appellate Commissioner passed an order dated 25.03.2008 against which both the petitioner herein and respondent-Department had filed appeals before the

4 Income Tax Appellate Tribunal. On 30.06.2011, petitioners’ appeals were allowed in part and the revenue’s appeals were also allowed in part by the Tribunal. Against that order, both the petitioner herein as well as the revenue preferred appeals before this Court under Section 260A of the Act. This Court by its judgment dated 14.3.2012 answered the substantial questions of law interalia, by directing the 1st respondent to give its finding with regard to the truth and genuineness of certain cash transactions. It is pursuant to that judgment, that the 1st respondent had issued notice dated 26.11.2012 to the petitioner to appear before him on 30.11.2012. The contention of the petitioner is that the notice was not served on the petitioner in time and therefore the petitioner could not appear before the 1st respondent on 30.11.2012 whereas the contention of the respondent-Department is that despite service of notice on the petitioner, it failed to appear before the

5 1st respondent-authority. In the circumstances, the respondent authority proceeded to pass the impugned order having regard to the material on record. It is under these circumstances that the orders of the 1st respondent are assailed in these Writ Petitions.

I have heard the learned Counsel for petitioner and learned counsel for respondents/Department and perused the material on record.

Without going into the controversy as to whether indeed notice dated 26.11.2012 was served on the petitioner on the very same day and despite that, the petitioner had not appeared on 30.11.2012, the fact remains that the impugned order has been passed without hearing the petitioner. Under these circumstances, the petitioner’s counsel states that an opportunity may be granted to the petitioner to appear before the 1st respondent so that an order

6 could be passed after hearing the petitioner. In the circumstances, orders impugned in these Writ Petitions are kept in abeyance. The petitioner is directed to appear before the 1st respondent on 20.01.2014 without insisting upon a fresh notice from that authority. 1st respondent to consider the case of the petitioner by affording an opportunity to it and thereafter, to come to a conclusion having regard to the directions issued by this Court in the judgment passed on 14.3.2012 as well as that of the Income Tax Appellate Tribunal.

In case the 1st respondent is of the opinion that the impugned orders call for any modification then he is at liberty to withdraw the said orders and pass fresh orders. Till the 1st respondent passes orders after hearing the petitioner herein, the impugned orders shall be kept in abeyance and no precipitative action shall be taken pursuant to the impugned orders. Writ

7 Petitions are disposed of with the aforesaid observations and directions.

Sd/- JUDGE

Prs*

M/S. SARAVANA CONSTRUCTIONS PVT LTD., vs. ASSISTANT COMMISSIONER OF INCOME TAX