IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.2320/2019 (T – IT) BETWEEN:
DUO MEADOWS PRIVATE LTD., A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, 1956 HAVING ITS OFFICE AT No.18,G1, ROYAL HERITAGE MAGRATH ROAD BENGALURU – 560 025 REPRESENTED BY ITS DIRECTOR SRI. NARAYANA MANJUNATH S/O SRI. NARAYANA REDDY AGED ABOUT 33 YEARS.
[BY SMT VANI H., ADV.] AND:
... PETITIONER 1. INCOME TAX OFFICER OFFICE OF INCOME TAX OFFICER, WARD – 2 (1)(3) ROOM No.207, 2ND FLOOR BMTC BUILDING, 80 FT ROAD 7TH CROSS KORAMANGALA BENGALURU – 560 095.
2. PRINCIPAL COMMISSIONER OF INCOME TAX OFFICE OF INCOME TAX OFFICER, WARD – 2(1)(3) ROOM No.207, 2ND FLOOR BMTC BUILDING, 80 FT ROAD 7TH CROSS KORAMANGALA BENGALURU 560 095.
…RESPONDENTS [BY SRI JEEVAN J. NEERALGI, ADV.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE PROVISIONAL ATTACHMENT ORDER DATED 27.12.2018 PASSED UNDER SECTION 281B OF THE INCOME TAX ACT, 1961 BY THE R-1VIDE ANNEXURE-M AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the provisional attachment order dated 27.12.2018 passed under Section 281B as well as the Assessment order dated 28.12.2018 passed under Section 143(3) and the consequential demand notice dated 28.12.2018 under Section 156 of the Income Tax Act, 1961 (‘Act’ for short).
2. The petitioner is a company engaged in the business of development of immovable properties, formation of layouts, sale of the sites/plots thereof. The petitioner was subjected to assessment under Section 143(3) of the Act relating to the assessment year 2016-
17. Before passing of the assessment order on 28.12.2018, an order dated 27.12.2018 was passed under Section 281B of the Act attaching the properties belonging to the assessee in order to protect the interest of the revenue during the assessment proceedings.
3. It is the main grievance of the petitioner that the order under Section 281B of the Act is a non- speaking order and the same is void ab initio. As regards the assessment order passed under Section 143(3) of the Act, the learned counsel for the petitioner would point out that the details of the development expenses and other direct expenses were furnished with the addresses and the PAN numbers of the persons to whom the payments were made. Ignoring the same, the Assessing Officer has observed that no addresses and PAN numbers have been furnished by the assessee except the names in support of the development expenses and direct expenses. The same discloses the non-application of mind by the Assessing Officer. It is contended that immediately after passing of the order under Section 281B of the Act on 27.12.2018, the next day i.e., on 28.12.2018 the assessment order has been passed. Thus, it is contended that the orders impugned herein being violative of the fundamental principles of law deserve to be set aside.
4. The learned counsel appearing for the revenue would submit that the factual aspects now pointed out by the learned counsel for the petitioner inasmuch as the list with addresses and PAN numbers with names found in the compromise account prima- facie does not tally and this aspect requires to be considered by the appellate authority. Hence, the petitioner may be relegated to the appellate forum. It is further submitted that the order passed under Section 281B of the Act has a short span of life of six months and pursuant to the conclusion of the assessment proceedings, extension of the said order is ordinarily not contemplated. Hence, the challenge made to the said order does not survive for consideration.
5. Having heard the learned counsel appearing for the parties and perusing the material on record, this Court is of the considered opinion that there is some force in the arguments advanced by the learned counsel for the revenue as the assessment order is challenged on the factual aspects in as much as the details of names and PAN numbers said to have been furnished by the assessee to whom the payments are made to establish the claim made, the same necessarily requires to be examined by the appellate authority, the machinery provided under the Act. The question of facts cannot be examined under the writ jurisdiction.
6. Hence, the petitioner is relegated to the Appellate Forum to assail the assessment order impugned. If such an appeal is preferred within a period of three weeks from today, the same shall be considered by the Appellate Authority in accordance with law on merits without objecting to the aspect of limitation.
7. The order passed by the Assessing Officer under Section 281B of the Act has been ceased to have effect after the expiry of six months from the date of the order of the assessment. Hence, the apprehension of the petitioner regarding the enforcement of the provisional attachment further would not arise and the same can be allayed with a direction to the respondent- authorities that the said order shall not be enforced until a decision is to be taken by the Appellate Authority on the stay application, if to be filed in the appeal proceedings by the assessee within a period of three weeks as aforesaid and is ordered accordingly.
With the aforesaid observations and directions, the writ petition stands disposed of.
Sd/- JUDGE PMR