Allowed

Gulam Mustafa Enterprises Private Limited v. the Assistant Commissioner of Incomet Ax

Karnataka HC16 Dec 2022WP/25370/2022

Case brief

AI extract

What is this about?

In a writ petition filed under Articles 226 and 227 of the Constitution, the Karnataka High Court quashed an income tax notice demanding 20% pre-deposit for filing an appeal and a bank communication freezing the petitioner's accounts, holding that neither the Income-tax Act nor the relevant CBDT Circular mandates such pre-deposit for appeals.

What did the court decide?

The impugned notice demanding 20% pre-deposit and the communication to the Bank of Baroda freezing the petitioner's accounts were quashed, and liberty was granted to the petitioner to present the orde

Gulam Mustafa Enterprises Private Limited Vs the Assistant… — Income Tax | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16^th DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR WRIT PETITION No.25370 OF 2022 (T-IT)

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BETWEEN:

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GULAM MUSTAFA ENTERPRISES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT HAVING ITS REGISTERED OFFICE AT NO.6 GM PEARL 1^ST STAGE, 1^ST PHASE, BTM LAYOUT, BENGALURU – 560 068.

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REPRESENTED BY ITS DIRECTOR/ AUTHORIZED SIGNATORY SRI. GULAM MUKTHIYAR S/O LATE. GULAM RASOOL AGED ABOUT 40 YEARS DOING BUSINESS AT NO. 6, GM PEARL 1^ST STAGE, 1^ST PHASE, BTM LAYOUT, BENGALURU – 560 068.

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…PETITIONER

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(BY SRI. M.N. SHESHADRI, SENIOR COUNSEL FOR SRI. CHANDPASHA., ADVOCATE)

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AND:

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1 . THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1 (2), CENTRAL REVENUE BUILDING, QUEENS ROAD, BANGALORE-560 001.

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2 . THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 1(2), CENTRAL REVENUE BUILDING, QUEENS ROAD, BANGALORE-560 001.

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3 . THE PRINCIPAL COMMISSIONER OF INCOME TAX BMTC BUILDING, 80 FEET ROAD,

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²

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KORAMANGALA, BANGALORE-560 095.

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4 . THE COMMISSIONER OF INCOME TAX (APPEALS) BMTC BUILDING, 80 FEET ROAD, KORAMANGALA, BANGALORE-560 095.

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5 . THE BRANCH MANAGER BANK OF BARODA, BMT LAYOUT BRANCH, BANGALORE-560 068.

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…RESPONDENTS

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(BY SRI. K.V. ARAVIND AND SRI. M. DILIP., ADVOCATES FOR R-1 TO R-4 NOTICE TO R5 IS D/W VIDE C/O DT.16.12.2022)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED LETTER DTD 07.10.2022 BEARING NO.ITBA/COM/F/17/2022-23/1046208633 (1) ISSUED BY THE R1 THE ASSISTANT COMMISSIONER, PRODUCED ANNEXURE-A AND ETC.

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THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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In this petition, petitioner has sought for the following

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reliefs:-

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“ a) Issue a writ in the nature of certiorari or any other writ or order to quash the impugned letter dated: 07.10.2022 bearing No. No. ITBA/COM/F/17/2022-23/ 1046208633 (1) issued by the Respondent No.1 the Assistant Commissioner, produced Annexure-A.

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b) Issue a writ in the nature of certiorari or any other writ or order or direction to quash the

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impugned letter dated: 09.12.2022 bearing No. F.NO. 226(3) / AAACT6320P/2022-23 issued by the Respondent No.2 to Bank of Baroda, BTM Layout Branch, Bengaluru i.e., petitioner’s Bank Vide Annexure-B.

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c) Issued a Writ in the nature Mandamus or any other Writ or Direction, directing the respondent-v to not to freeze the Bank account of the petitioner maintained at Respondent No.5 Bank and consequently permit its operations vide Annexure-B.

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d) To grant such other further reliefs as this Hon’ble Court deems fit and proper in the circumstances of the case on hand in the interest of justice and equity.”

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Heard learned Senior counsel for the petitioner

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and learned counsel for the respondents and perused the material on record.

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The material on record discloses that aggrieved by the order passed by the Assessing Officer, the petitioner has preferred the appeal which is pending before the 4^th respondent – Appellate authority. During the pendency of the appeals, the 1^st respondent – Assessing Officer has issued the impugned notice calling upon the petitioner to pay 20% of the total amount demanded in the order, which

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was under challenge before the appellate authority on the ground that the same is required to be deposited / paid by the petitioner before filing the appeal in terms of the CBDT Circular No. 1914 dated 31.07.2017. Since the petitioner did not comply with the demand made in the said notice, the 2^nd respondent has issued impugned communication at Annexure-B dated 09.12.2022 to the 5^th respondent – Bank calling upon the Bank to pay the amounts due from the petitioner. Aggrieved by the impugned letter at Annexure-A dated 07.10.2022 and the impugned communication at Annexure-B dated 09.12.2022, the petitioner is before this Court by way of the present petition.

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Per contra, learned counsel for the respondents – revenue fairly submits that there is no requirement of the pre-deposit prior to preferring the appeal by the petitioner – assessee against the order passed by the Assessing Officer as wrongly stated in the notice at Annexure-A. His submission is placed on record.

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In view of the aforesaid facts and circumstances and the submissions made by the learned counsel for the

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respondents – revenue that there is no requirement of making pre-deposit of 20% or otherwise by the petitioner – assessee, who has preferred the appeal pending before the 4^th respondent – Assessing Authority, coupled with the language employed under Section 240A of the I.T.Act, which does not mandate pre-deposit of 20% nor the Circular dated 31.07.2017 relied upon in Annexure-A, which also does not contemplate requirement of predeposit for the purpose of filing / maintaining the appeal, I am of the considered opinion that the impugned letter at Annexure-A dated 07.10.2022 deserves to be quashed and consequently, the impugned communication at Annexure-B dated 09.12.2022 also deserves to be quashed and appropriate directions are to be issued to the respondents.

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In the result, I pass the following:-

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ORDER

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(i) Petition is hereby allowed.

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(ii) The impugned letter at Annexure-A dated 07.10.2022 passed by the 1^st respondent – Assessing Officer and the impugned communication at Annexure-B

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dated 09.12.2022 issued by the 2^nd respondent are hereby quashed.

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(iii) Liberty is reserved in favour of respondents 1 to 4 to take recourse to such remedies as available in law. (iv) Petitioner is at liberty to produce the copy of this order before the 5^th respondent – Bank to enable the Bank to defreeze all the accounts of the petitioner which was frozen pursuant to Annexure-B which stands quashed under this order.

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Sd/JUDGE

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Srl.

Gulam Mustafa Enterprises Private Limited v. the Assistant Commissioner of Incomet Ax

Case brief

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Gulam Mustafa Enterprises Private Limited v. the Assistant Commissioner of Incomet Ax

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