SMT YASHODARA MARAR V. INCOME TAX OFFICER

WP/13562/2022

AI Insights

The case involves Smt. Yashodara Marar, who filed a writ petition against the Income Tax Officer challenging an order and subsequent notice related to the assessment year 2015-16. The petitioner argued that her contribution to a property purchase was below the threshold of Rs. 50,00,000, and thus the proceedings initiated were beyond the prescribed period and barred by limitation. The respondent contested the petitioner's claims. The court examined the contributions made by the petitioner and her family under the Transfer of Property Act, 1882, and concluded that the assessment was indeed barred by limitation, leading to the quashing of the order and notice.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 753919 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 28-10-2022
• Assessment Year: misc
• Other Referred Cases: W.P.No.15387/2022
• Laws Referred To: Income Tax Act, 1961, Constitution of India, Transfer of Property Act, 1882
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: K V ARAVIND
• Assessee Lawyers: GAUTAM BHARADWAJ
• Keywords: Income Tax; Limitation; Quash order; Writ petition; Joint Property Purchase
• Section: 142(1); 148A(d); 45; 226; 227

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF OCTOBER, 2022 BEFORE THE HON’BLE MR.JUSTICE S.R.KRISHNA KUMAR WRIT PETITION No.13562/2022 (T-IT) BETWEEN: SMT. YASHODARA MARAR W/O SRI HARI K. MARAR AGED 52 YEARS R/AT NO 3024, SHOBHA PETNUIA VEERANAPALYA, NAGAWARA POST BANGALORE 560 045 … PETITIONER (BY SRI .GAUTAM S.BHARADWAJ, ADVOCATE) AND: INCOME TAX OFFICER WARD - 1 (2) (1) BMTC BUILDING, 80 FEET ROAD 6TH BLOCK, KORAMANGALA BENGALURU- 560 095 … RESPONDENT (BY SRI K.V.ARAVIND, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 31.03.2022 PASSED BY THE RESPONDENT BEARING DIN AND NOTICE NO.ITBA/ AST/F/148A/2021-2021- 22/1042360504(1) FOR THE ASSESSMENT YEAR 2015-16 VIDE ANNX-J AND ETC. THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: 2 ORDER 1. In this writ petition, the petitioner seeks quashing of the impugned order dated 31.03.2022 passed under Section 148A(d) of the Income Tax Act, 1961 (for short, hereinafter referred to as \"the I.T. Act\" by the respondent at Annexure-J and for other consequential reliefs. 2. Heard Sri Gautam S.Bharadwaj, learned counsel appearing for the petitioner and Sri K.V.Aravind, learned counsel for the respondent. Perused the records. 3. The material on record discloses that on 08.02.2012, the petitioner along with her mother and sister entered into an Agreement of Sale for purchase of a residential apartment in Legacy Estilo developed by M/s.Legacy Global Projects Limited for total sale consideration of Rs.77,00,000/-. 4. It is contended that out of the total sale consideration of Rs.77,00,000/- paid jointly by the petitioner, her mother and sister, petitioner's contribution was only Rs.8.3 lakhs. It is contended that since the project was not completed within the 3 stipulated time, the petitioner, her mother and sister negotiated with the builder to provide an alternative apartment at Legacy Eldora and the sale consideration of Rs.77,00,000/- already paid by them would be adjusted towards the apartment at Legacy Eldora. 5. It is the grievance of the petitioner that as the contribution of the petitioner was less than Rs.50,00,000/-, the impugned proceedings, which has been initiated beyond the prescribed period, are barred by limitation and consequently, the impugned order dated 31.03.2022 passed under Section 148A(d) of the I.T. Act as well as the consequent notice dated 06.05.2022 issued under Section 142(1) of the I.T. Act vide Annexure-K deserve to be quashed. 6. Learned counsel for the petitioner places reliance on the decision of a Co-ordinate Bench of this Court in W.P.No.15387/2022 disposed of on 06.09.2022 in order to contend that when the property is purchased contributing jointly by two or more persons, the contribution of each person and their respective right, title and interest in the property would have to be 4 construed in accordance with Section 45 of the Transfer of Property Act, 1882 (for short, hereinafter referred to as \"the T.P.Act\"). 7. Per contra, learned counsel for the respondent - revenue submits that there is no merit in the writ petition and the same is liable to be dismissed. 8. Though it is specifically contended by the learned counsel for the petitioner that petitioner's contribution out of Rs.77,00,000/- was only Rs.8.3 lakhs, the said contention loses significance in the light of Section 45 of the T.P. Act, which reads as under: \"45. Joint transfer for consideration.- Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such 5 property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.\" 9. A plain reading of Section 45 of the T.P. Act clearly indicates that even in the absence of evidence as to the interests in the funds to which the persons were entitled respectively or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. 10. In the instant case, in the light of the undisputed fact that out of total sale consideration of Rs.77,00,000/-, even assuming that the petitioner has failed to establish that she had contributed Rs.8.3 lakhs, even then by applying the provisions of Section 45 of the T.P. Act, the share and interest of the petitioner would come to Rs.26,00,000/- which is less than Rs.50,00,000/- as required for the purpose of limitation under Section 149 of the I.T. Act. Under these circumstances, I am of the considered opinion that impugned order dated 31.03.2022 passed under Section 6 148A(d) of the I.T. Act directing issuance of notice under Section 148 of the I.T. Act for the assessment year 2015-16 deserves to be quashed on the ground that this assessment is clearly barred by limitation. In the result, I pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 31.03.2022 passed under Section 148A(d) of the I.T. Act and the consequent notice dated 06.05.2022 issued under Section 142(1) of the I.T. Act vide Annexures-J and K respectively are quashed. Sd/- JUDGE PKS "