Sri. Muddanna Channakeshava V. Assistant Commissioner of Income Tax, Central Circle -1(2) and Deputy Commissioner of Income Tax, Central Circle -1(2) and Tax Recovery Officer (Central) and Principal Commissioner of Income Tax Central and Commissioner of Income Tax Appeals (11)

WP/14546/2024

AI Insights

The case involves Sri. Muddanna Channakeshava, the petitioner, who challenged the order of the Commissioner of Income Tax (Appeals) rejecting his application for condonation of delay in filing an appeal against an ex-parte assessment order for the assessment year 2011-12. The petitioner argued that the delay was due to financial difficulties and attachment of properties by the department, which prevented him from paying self-assessment tax and filing the appeal on time. The court found that the Commissioner had not adequately considered the reasons for the delay and had adopted a hyper-technical approach, leading to the setting aside of the Commissioner’s order and remanding the case for a fresh decision.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 681689 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 11-06-2024
• Assessment Year: misc
• Other Referred Cases: Income Tax Appeal No.683/2009
• Laws Referred To: Articles 226 and 227 of the Constitution of India, Section 153A, Section 144, Section 249(3) of the Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: M DILIP
• Assessee Lawyers: M V SESHACHALA; NAGHARISH
• Keywords: Appeal; Assessment Year 2011-12; Condonation of delay; Ex parte assessment; Income Tax
• Section: 144; 153A; 249(3)

Judgement Text

" - 1 - NC: 2024:KHC:20500 WP No. 14546 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 14546 OF 2024 (T-IT) BETWEEN: SRI. MUDDANNA CHANNAKESHAVA, S/O LATE MUDDANNA, AGED 55 YEARS, R/AT NO. 96, BILISHIVALE VILLAGE, HENNUR MAIN ROAD, KOTHANUR POST, BENGALURU - 560 077. …PETITIONER (BY SRI. M.V. SESHACHALA, SENIOR ADVOCATE FOR SRI. NAGHARISH G.S, ADVOCATE) AND: 1. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -1(2), C.R. BUILDING, QUEENS ROAD, BENGALURU - 560 001. 2. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -1(2), C.R. BUILDING, QUEENS ROAD, BENGALURU - 560 001. 3. TAX RECOVERY OFFICER (CENTRAL), C.R. BUILDING, QUEENS ROAD, BENGALURU - 560 001. 4. PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL, Digitally signed by V KRISHNA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:20500 WP No. 14546 of 2024 C.R. BUILDING, QUEENS ROAD, BENGALURU - 560 001. 5. COMMISSIONER OF INCOME TAX APPEALS (11), ROOM NO. 322, 3RD FLOOR, C.R. BUILDING, QUEENS ROAD, BENGALURU - 560 001. …RESPONDENTS (BY SRI. M. DILIP, JR. STANDING COUNSEL) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22/03/2024 PASSED BY THE FIFTH RESPONDENT IN APPEAL NO. CIT(A)-11/BNG/11433/2018-19 ANNEXURE-G2 FOR AY 2011-12 REJECTING THE APPLICATION FOR CONDONATION OF DELAY AND CONSEQUENTLY THE APPEAL ITSELF AND DIRECT THE FIFTH RESPONDENT TO CONSIDER THE APPEAL ON MERITS AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner has called in question the validity of the order dated 22.03.2024 passed by respondent No.5 in appeal proceedings for the assessment year 2011-12 rejecting the application for condonation of delay and consequently dismissing the appeal. The petitioner has - 3 - NC: 2024:KHC:20500 WP No. 14546 of 2024 also sought for setting aside of the ex-parte assessment order dated 16.03.2016 passed by respondent No.1 for the assessment year 2011-12. 2. Learned Senior Counsel Sri. M.V. Seshachala appearing on behalf of the petitioner submits that the authority while deciding regarding to condonation of delay has adopted hyper technical approach. The facts made out are that the assessee filed a return of income on 19.02.2016, which however was treated as defective and defective memo was issued. It is made out that as the defects notified were not rectified and the authority has proceeded further and passed an ex-parte assessment order under Section 153A read with Section 144 of the Act. 3. The assessee thereafter has filed an appeal before the Commissioner of Income Tax (Appeals) challenging the order made by the Assessing Officer. In such proceedings, there was a delay and accordingly application for condonation of delay for 145 days was filed. - 4 - NC: 2024:KHC:20500 WP No. 14546 of 2024 However, the said delay was not condoned and an order dated 22.03.2024 has been passed at Annexure-G2. 4. It is noticed that the Commissioner of Income Tax (Appeals) has rejected the cause made out in the application stating that affidavit was not filed along with the appeal and that contents of the affidavit filed belatedly do not make out sufficient cause as regards financial difficulties pleaded. The Commissioner of Income Tax (Appeals) has recorded the finding that there was no sufficient cause made out to substantiate the delay in the application at Annexure-‘F1’ filed under Section 249(3) of the Act. 5. The delay is set out in paragraph No.6 and it is submitted that department had attached all properties, bank accounts and payment received from the M/s. Total Environment Constructions Pvt. Ltd., and the assessee was not in a position to pay self assessment tax and file the appeal. - 5 - NC: 2024:KHC:20500 WP No. 14546 of 2024 6. It is further submitted that insofar as the same petitioner is concerned for the previous assessment years 2004-05 to 2007-08 and 2009-10, where again there was delay, the Tribunal had condoned the delay and remitted the matter back for fresh consideration. 7. It must be noticed that the delay in the present case is as regards 160 days as made out in the application. The cause is also made out in the affidavit filed in support to the application. The Tribunal in its order for the assessment year 2004-05 to 2007-08 and 2009-10 had also condoned the delay in case of the same assessee. 8. In the present case, the Commissioner of Income Tax (Appeals) has not taken note of the delay as made out in the application as well as stated in the affidavit and a hyper technical approach has been resorted to. 9. The Commissioner of Income Tax (Appeals) also could not have prejudiced the appellant by construing the - 6 - NC: 2024:KHC:20500 WP No. 14546 of 2024 filing of an additional affidavit as one filed with delay of 2738 days as observed in paragraph No.5.2.2 which reflects the extreme conservative approach in deciding the application for condonation of delay which requires to be set aside. The Tribunal has failed to take note that the subsequent affidavit filed was only a supplementary affidavit. 10. Taking note that the period of delay being 160 days and also the reasons stated in the affidavit, a liberal approach could be adopted. In light of the discussion made above, the order of Commissioner of Income Tax (Appeals) at Annexure-'G2' is set aside, delay is condoned and the matter is remanded back for fresh consideration on merits before the Commissioner of Income Tax (Appeals). 11. All contentions are kept open including the contention that the authority could not have proceeded to pass an adjudication order as regards the defective return which had an order passed on such defective return was a - 7 - NC: 2024:KHC:20500 WP No. 14546 of 2024 nullity in terms of the order passed in Income Tax Appeal No.683/2009 disposed off on 20.04.2015. Accordingly, petition is disposed off. Sd/- JUDGE MCR "