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- 1 - IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 22ND DAY OF NOVEMBER 2013 P R E S E N T THE HON’BLE MR. JUSTICE N. KUMAR A N D THE HON’BLE MRS. JUSTICE RATHNAKALA WRIT APPEAL NO.2168/2013 (T-IT)
BETWEEN: R.S. HEMALATHA W/O R.G. SRINIVASA MURTHY, AGED ABOUT 47 YEARS, RESIDING NO.242/4, 4TH WARD, 6TH MAIN, N.R. ROAD, DAVANAGERE – 577001.
…APPELLANT
(By SRI R. RAMAMURTHY & SRI KASHINATH KALMATH, ADVS.)
AND:
THE JOINT COMMISSIONER OF
INCOME TAX,
DAVANAGERE RANGE,
DAVANAGERE – 577 001.
THE INCOME TAX OFFICER,
WARD-2, PARK VIEW BUILDING,
P.J. EXTENSION,
DAVANAGERE – 577 001. …RESPONDENTS
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.4928/2013 DATED 04/02/2013.
- 2 -
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, N. KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the assessee challenging the order passed by the learned Single Judge who has declined to entertain the writ petition on the ground of availability of alternative statutory remedy.
The writ petition was preferred challenging the order passed by the assessing authority imposing penalty. Before imposing penalty, notice was issued, the appellant appeared and brought to the notice of the authority that he has filed an appeal challenging the quantum of tax levied and therefore, he requested to defer the proceedings of penalty. He was called upon to furnish a copy of the appeal memorandum and accordingly, he has furnished the same. The grievance of the appellant is that after furnishing the copy of the appeal memorandum, there was a change in the assessing authority. The assessing authority without hearing the appellant has proceeded to pass an order
- 3 - imposing penalty. Learned single Judge with whom the said grievance was made in the writ petition held that against the order of imposing penalty an appeal may be preferred and therefore, he declined to entertain the writ petition. It is against the said order, the present appeal is filed.
Learned Counsel for the appellant assailing the impugned order contends that the order passed by the authorities is in violation of the principles of natural justice and therefore, the learned single Judge was not justified in dismissing the writ petition. Secondly, he contended that an appeal is provided against the said order, either enhancing, reducing or imposing the penalty. Therefore, he submits that the appellant was justified in filing the writ petition.
When the statutory appeal is provided against the order, the appellate authority has ample power to consider the same and keep in mind the principles of natural justice in deciding the appeal. Insofar as want of opportunity is concerned, it is not a case where no
- 4 - notice was served nor the appellant did not file any reply. His grievance is that after he has filed his reply, without hearing him personally, the order came to be passed. The appellate authority has to consider this grievance also, apart from hearing the appeal on merit. In the facts and circumstance of the case, the impugned order does not call for interference and the same is dismissed, reserving liberty to the appellant to avail an alternate remedy available in the law.
If the appellant were to prefer an appeal within 30 days from today before the competent authority, the appellate authority shall consider the appeal without going into the question of limitation and decide the appeal on merits and in accordance with law, including the question of violation of principles of natural justice.
Sd/- JUDGE
Sd/- JUDGE nvj