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Karnataka High Court

The Asst. Commissioner Of vs Ittina Infra-Tech Limited on 20 May, 2025

                           -1-
                                        WA No. 601 of 2023



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 20TH DAY OF MAY, 2025

                       PRESENT
      THE HON'BLE MR JUSTICE V KAMESWAR RAO
                          AND
         THE HON'BLE MR JUSTICE S RACHAIAH
                 WA NO. 601 OF 2023


BETWEEN:

1.   THE ASST. COMMISSIONER OF
     INCOME TAX, CENTRAL CIRCLE-1(2),
     BANGALORE,
     BMTC BUILDING, 80 FEET ROAD,
     6TH BLOCK, KORAMANGALA,
     BENGALURU - 560 095.

2.   THE PR. COMMISSIONER OF
     INCOME TAX-1, BANGALORE,
     BMTC BUILDING, 80 FEET ROAD,
     6TH BLOCK, KORAMANGALA,
     BENGALURU - 560 095.

3.   THE COMMISSIONER OF
     INCOME TAX (APPEALS)-VI,
     BANGALORE, NO.324,
     C.R. BUILDING, QUEENS ROAD,
     BENGALURU - 560 001.

4.   THE COMMISSIONER OF
     INCOME TAX (APPEALS),
     MYSORE, NO.55/1,
     SHILPASHREE VIDYARANYA COMPLEX,
     VISHVESHWARANAGAR, MYSORE - 570 008.

5.   THE INCOME TAX APPELLATE TRIBUNAL,
     BANGALORE BENCH,
     REPRESENTED HEREIN BY ITS DEPUTY REGISTRAR,
                            -2-
                                    WA No. 601 of 2023



    NO.51, BEHIND JAL BHAWAN,
    1ST CROSS, 4TH T BLOCK,
    TILAK NAGAR, JAYANAGAR,
    BANGALORE - 560 041.

                                          ...APPELLANTS
(BY SRI. DILIP M., ADVOCATE)


AND:

    ITTINA INFRA-TECH LIMITED,
    A COMPANY INCORPORATED UNDER THE
    PROVISIONS OF THE COMPANIES ACT, 1956,
    NO.1054, 7TH MAIN, 3RD BLOCK,
    KORAMANGALA,
    BANGALORE - 560 034,
    REPRESENTED BY ITS PRESENT DIRECTOR,
    MR. MANU ITTINA.
                                       ...RESPONDENT

(BY SRI. A.SHANKAR, SENIOR ADVOCATE FOR
    SRI. SANDEEP HUILGOL, ADVOCATE)

     THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT,1961 PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.
13329/2022 DATED 09/09/2022, ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.11.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, V. KAMESWAR
RAO, J., DELIVERED THE FOLLOWING:


CORAM:   THE HON'BLE MR JUSTICE V KAMESWAR RAO
         AND
         THE HON'BLE MR JUSTICE S RACHAIAH
                                  -3-
                                                  WA No. 601 of 2023



                         CAV JUDGMENT

(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO) The challenge in this intra-court appeal is to an order dated 09.09.2022 passed by the learned Single Judge in Writ Petition No.13329/2022, whereby the learned Single Judge has allowed the writ petition by stating as under:

"ORDER

i) Petition is hereby allowed.

ii) The impugned order at Annexure-B dated 16.08.2010 passed by Respondent no.3-

Commissioner (Appeals) as well as the impugned order at Annexure-A dated 22.02.2013 passed by the Respondent No.5-Income Tax Appellate Tribunal are hereby set aside.

iii) Matter is remitted back to the respondent Nos.3 & 4 for reconsideration afresh in accordance with law.

iv) Liberty is reserved in favour of the petitioner to submit additional pleadings, documents etc., to the said respondents, who shall consider the same and proceed further in accordance with law.

v) All rival contentions are kept open and no opinion is expressed on the same."

WA No. 601 of 2023

2. The writ petition was filed in the year 2022 by the respondent herein before the learned Single Judge challenging the order dated 16.08.2010 passed by the Respondent No.3-Commissioner (Appeals) as well as the order dated 22.02.2013 passed by the Respondent No.5- Income Tax Appellate Tribunal (in short 'ITAT').

3. The ground on which the learned Single Judge has allowed the petition is by noting a specific assertion on the part of the respondent that, it could not prosecute the appeals before the Respondent No.3-Commissioner (Appeals-VI), Bengaluru, the Commissioner of Appeals (Mysuru) (Respondent No.4) and the ITAT due to bona fide reasons, unavoidable circumstances and sufficient cause and in view of the payments having been made by the appellant subsequently and also by relying upon the judgment of this Court in the case of Komalakshi Vs. the Deputy Commissioner of Income Tax [ILR 2007 KAR 898] so as to provide one more opportunity to the petitioner by adopting justice oriented approach. -5- WA No. 601 of 2023

4. The submission of the learned counsel for the appellants (Revenue) is that, the learned Single Judge has failed to consider that the respondent had not shown sufficient cause/reasons for not challenging the order dated 22.02.2013 passed by the ITAT, before the High Court nor filed any Miscellaneous Petition before the Tribunal. According to him, the learned Single Judge has failed to appreciate that, the case of Komalakshi (supra) is clearly distinguishable on facts of the present case. According to him, the Commissioner (Appeals) and the ITAT have rightly dismissed the appeals for non- appearance and on the ground of maintainability for non- payment of tax. He stated if a petition on these facts is entertained, then every Assessee shall re-open the final assessment after long period of time by invoking writ jurisdiction, making the remedy under the I.T. Act futile/otiose. He stated, the principle of delay and laches shall always govern maintainability of writ petition.

5. Mr. A. Shankar, the learned Senior Counsel for the respondent would submit that the writ appeal has -6- WA No. 601 of 2023 been filed by the Appellants/Revenue challenging the order dated 09.09.2022, whereby the learned Single Judge had allowed the writ petition and remitted the matter to the file of the Commissioner (Appeals) restoring the appeals before Respondent No.3 and 4 for a fresh consideration. He stated that, the respondent had preferred the Writ Petition 13329/2022 challenging the order dated 22.02.2013 vide which the respondent's appeals bearing ITA Nos.1463 & 1464/Bang/2010 for the Assessment Years 2006-07 and 2007-08 under the provisions of Income Tax Act,1961 (in short, "I.T. Act") were dismissed on ex-parte basis, while upholding the order dated 16.08.2010 passed by the 3rd Respondent- the Commissioner of Income Tax (Appeals) in limine on the ground that the tax payable on the income returned by the respondent had not been discharged at the time of filing of the appeals. According to him, when the writ petition was listed on 09.09.2022, the learned Single Judge after hearing the submissions of both sides and by perusing the material on record, and taking note of the bona fide circumstances, due to which the respondent -7- WA No. 601 of 2023 was unable to make payment of the admitted Tax and also taking note of the payments made by the respondent before filing of the Writ Petition and in the light of the order of the Division Bench in Komalakshi's case (supra), had rightly allowed the writ petition, setting aside the aforesaid impugned orders and restoring the appeals to the files of the 3rd and 4th respondents therein in order to afford another opportunity to the respondent to put-forth its case before the appellants on merits.

6. According to him, the grounds urged in the present appeal were never urged before the learned Single Judge either orally or in writing, nor did the appellants sought liberty to file the written submissions in support of their contentions. Therefore, the contentions of the appellants that the learned Single Judge has failed to appreciate that the respondent had not shown sufficient reasons for the purported delay in filing the writ petition and in payment of admitted Tax, is erroneous and misconceived. He also stated that, the learned Single Judge has rightly exercised his discretion -8- WA No. 601 of 2023 and as such this Court in exercise of its appellate jurisdiction shall not substitute the said discretion, unless such a discretion exercised is arbitrary, capricious or perverse and that apart, the Appellate Court ought not to re-assess the material and seek to reach a different conclusion solely on the ground that had it considered such material, a contrary conclusion would be reached. In support of his submission, he has relied upon the judgment in the case of M/s. Printers (Mysore) Private Limited Vs. Pothan Joseph [1960 SCR (3) 713] and Wander Limited and Another Vs. Antox India Pvt. Ltd. [1990 (Supp) SCC 727].

7. Mr. Shankar had also stated that the respondent had no other alternative option other than by approaching the learned Single Judge by way of a writ petition seeking setting aside of the orders dated 22.02.2013 and 16.08.2010 and consequently seeking a direction for restoration of the respondent's appeals for the subject Assessment Years:2006-07 & 2007-08 on the file of the 3rd and 4th Respondents with a direction to -9- WA No. 601 of 2023 consider expeditiously and dispose of the said appeals on merits especially in the light of this Court's order in the respondent's own case for the Assessment Years 2004- 05 and 2005-06, given that the aforesaid impugned orders were passed in an ex-parte manner since the respondent had not received any communication from the 5th appellant after 2013 with respect to its aforesaid appeals nor was it aware of the date assigned for the hearing in the appeals. He stated that, in cases of ex- prate orders or violation of the principles of natural justice, this Court can exercise jurisdiction under Article 226 of the Constitution of India, notwithstanding the existence of an alternative remedy, which jurisdiction was rightly exercised by the learned Single Judge in entertaining the writ petition filed by the respondent and then setting aside the order impugned in the writ petition.

8. Mr. Shankar had also stated, it has been rightly held, time and again that the availability of alternate remedy is not a bar in filing Writ Petition, as

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maintainability and entertainability are two distinct concepts and further that entertaining of a writ petition in the presence of an alternative remedy is a matter of discretion. In support of this position of law, he has relied upon the decision of this Court in the case of M/s. I.G. Petro Chemicals Limited Vs. Income Tax Authority and Another [2024 (470) ITR 513]. It was also his submission that, there was no delay or laches on its part in filing the writ petition. There was no fixed period of limitation for filing of the writ petition and what is ought to be considered is, whether the same has been filed within a reasonable time or at the earliest possible opportunity and the decision to issue a writ on such matter is a question of discretion, which has to be decided on the facts and circumstances arising in the case. In support of his contention, he placed reliance on the decision in the case of Sudama Devi Vs. Commissioner, Gorakhpur and others [(1983) 2 SCC 1]; Sri.Vallabh Glass Words Limited and another Vs. Union of India and others [(1984) 3 SCC 362]; Tukaram Kana Joshi and Others Vs.

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Maharashtra Industrial Development Corporation and Others [(2013) 1 SCC 353] and Chandra Bhushan and Another Vs. Deputy Director of Consolidation (Regional), U.P. and Others [AIR 1967 SC 1272]. He stated that, despite best efforts, the respondent was not aware of the date of hearing of it's appeals before the ITAT or the fact that the appeals had been dismissed vide impugned order passed by the ITAT.

9. On the contrary the writ petition was filed before this Court immediately after the respondent becoming aware on 29.04.2022 for the very first time that the appeals have been dismissed by the 5th appellant-ITAT. That apart, even the statutory appeal under Section 260(A) itself envisages that the order of the ITAT may be challenged within 120 days from the date on which such order is received by the Assessee or once it is communicated to the Assessee. Therefore, it is the date of service and not the date of passing of order, which is vital to calculate the limitation.

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10. According to Mr. Shankar, even if there was a delay, assuming but not admitting, in challenging, the order of the 5th appellant, the same is bona fide and not intentional or with a view to protract the proceedings and it is in fact demonstrated that the respondent approached the learned Single Judge at the earliest possible opportunity, after it is made aware of the impugned order of the 5th appellant-ITAT. The respondent is not guilty of laches and thus, he submitted that the learned Single Judge was justified in entertaining the petition filed by the respondent. Even otherwise, it is his submission that the delay and laches have been sufficiently explained. The chronology of events which led to the purported delay in challenging the impugned order of the ITAT have been sufficiently averred in Paragraph Nos. 22 to 38. He stated in the absence of any communication by the 5th appellant-ITAT as regard to the hearing of the restored appeals, the respondent was under the bona fide impression that it's appeals before the ITAT for the subject assessment years are pending

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consideration. This is primarily because it did not receive any notice from the ITAT.

11. According to him, in the light of the appeals for assessment years 2006-07 and 2007-08 having attained finality, the respondent addressed a letter dated 17.03.2022 to the ITAT seeking to know the status of the appeals for the subject assessment years and it was only then it was informed vide letter dated 31.03.2022 that the appeals have already been heard and disposed of in an ex-parte manner on 22.02.2013. It was only thereafter on receiving the certified copies and also arranging for the funds to make payment of the admitted Tax, the respondent immediately took steps to file the writ petition. He stated that, it is a settled position of law that it is not the duration of the delay but the sufficiency and acceptability of the cause of delay that has to be considered as held by the Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy [(1998) 7 SCC 123]; The Collector, Land Acquisition Vs. Mst Katiji and Others [ (1987)

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28 ELT 185 (SC)] and Mool Chandra Vs. Union of India and Another [2024 SCC Online SC 1978].

12. It was his submission that the appellant has contended that the respondent has not given sufficient reasons for non-payment of the admitted Tax, which is the basis on which the impugned order in the writ petition was passed by the 3rd and 5th Respondents. He stated that the reasons for non-payment of the admitted dues have been sufficiently explained and are demonstrated in writ petition from Paragraphs-11 to 16. According to him, the respondent was subjected to search and seizure procedure against him during which, attachments were effected on the Bank Accounts, immovable properties and original title documents and books of accounts of the respondent were seized, due to which, the respondent could, neither continue his business nor raised the amounts required to make payment of the admitted Tax. It was due to these extenuating circumstances, the respondent was unable to make payments of the admitted Tax at the time of filing

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of the appeals for the subject tax period. However, pursuant to his correspondences with the department with reference to lifting of the attachments some coercive steps were finally relaxed in 2022 and the respondent was able to secure the funds to make payments of the admitted Tax. In fact the bonafides of the respondent and its intention to make payment of the admitted Tax is also demonstrated by the fact that the respondent made payment of admitted Tax as soon as various attachments and seizures effected on its Bank Accounts and properties were lifted. Since the respondent has made payment of the admitted Tax, the ground of appellants that, the decision of the Hon'ble Supreme Court in the case of Komalakshi (supra), where this Court had exercised the jurisdiction vested in it judiciously and equitably in condoning the delay on payment of admitted dues and consequently directed the Appellate Authority therein to admit such appeals for consideration on merits, is justified. He seeks dismissal of the writ appeal.

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ANALYSIS

13. Having heard the learned counsel for the parties, the short issue which arises for consideration is, whether the learned Single Judge is justified in allowing the writ petition, which lays challenge to the order dated 16.08.2010 of the Commissioner (Appeals) and order dated 22.02.2013 passed by the Tribunal and thereby remitting the matter to the Respondents No.3 & 4 for re- consideration as per law.

14. There is no dispute that the writ petition was filed by the Respondent-Ittina Infra-tech Limited challenging the order dated 16.08.2010 passed by the Commissioner (Appeals) as well as the order dated 22.02.2013 passed by the ITAT. Vide the said orders, the First Appeal filed before the Commissioner (Appeals) challenging the Assesment Orders passed on 31.12.2009 under Section 143(3) read with Section 153-A of the I.T. Act for the Assessment Years: 2004-05 to 2007-08 were rejected.

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15. The appeals before the Tribunal were primarily relatable to the Assessment Years:2006-07 and 2007-08. The Commissioner (Appeals) while rejecting the appeals by referring to the provisions of 249(4)(a) of the I.T. Act held that, if the respondent does not pay the Taxes due on the returned income before filing the appeal under Section 246(a), the same cannot be admitted as per the said Section 249(4)(a) of the I.T. Act. The Tribunal in its order dated 22.02.2013 noting the fact that there is delay of 61 days in filing the appeals and no application for condonation of delay was filed and earlier also, the appeal was dismissed for non-prosecution on 12.04.2012 and the orders were recalled for affording opportunity of being heard to the Assessee and pursuant to the order passed on 30.11.2012, the appeals were listed for hearing on 12.02.2013 and as none appeared on that day, the hearing was adjourned to 13.02.2013, on which day also none appeared for the Assesee-Respondent, and on perusal of the grounds of appeal filed by the Respondent-Assessee, on the question of maintainability of the appeals, in view of non-payment of the tax due on

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income returned, which is in violation of Section 249(4)(a) of the I.T. Act, has dismissed the appeals.

16. The learned Single Judge, noting the stand of the Respondent-Assessee that it could not prosecute the appeals due to bonafide reasons, unavoidable circumstances and sufficient cause having been shown and in view of the fact, Tax has been paid by the Assessee later in the year 2022 and by referring to the judgment of this Court in the case of Komalakshi (supra), granted one more opportunity by adopting justice oriented approach. Suffice to state that the appeal filed before the Tribunal by the Respondent was in any case, barred by time of 61 days. There was no application filed seeking condonation of delay in filing the appeals before the Tribunal. Even we find that, on an earlier occasion also, the appeals were dismissed for non-prosecution and the said order having been re-called on applications filed by the Respondent-Assessee being MP Nos. 35 and 36 on 30.11.2012 and the appeals were listed on 12.02.2013 when again the respondent did not

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appear on which day the matter was adjourned for next day i.e., on 13.02.2013, when none appeared for Respondent No.1, the appeals were rightly dismissed by the Tribunal on the ground that, the appeals were not admitted by the Commissioner (Appeals). It is noted the orders dated 16.08.2010 and 22.02.2013 passed by the Tribunal were challenged after 09 years. The plea of the Respondent-Assessee for not challenging the order can be seen in Paragraph-25 and Paragraphs No.29 to 35 of the writ petition, which we re-produce as under: -

25. Thereafter, the Petitioner became aware that the miscellaneous petitions came to be allowed and that the appeals would be restored onto the files of the ITAT for hearing.

However, the Petitioner was not aware of the date of hearing fixed for the appeals nor was it aware of the Bench to which it was assigned.

xxxx xxxx xxxx xxxx xxxx

29. While so, the Petitioner continued to be of the bonafide belief that its appeals before the ITAT for AYs 2006-07 and 2007-08 were pending consideration before the ITAT especially since it did not receive any communication from the ITAT with respect to

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its said appeals. The Petitioner naturally assumed that as and when a date of hearing was fixed for the hearing of its appeals for AYs 2006-07 and 2007-08, the same would be intimated to it by way of a notice or endorsement from the ITAT as was the case in respect of all cases before the ITAT. True copies of its audited financial statements demonstrating that it was under this bonafide belief for the years ending on the 31st of March of 2013, 2015, 2017, 2019, and 2021 are annexed as Annexures N-1 to N-5 respectively. The Petitioner humbly submits that it has not produced the financials for the intervening years only with a view to maintain brevity, but it humbly craves leave of this Hon'ble Court to produce the same as and when the same may be required.

30. Similarly, it did not hear from the IT Department in respect of the aforesaid appeals. The Petitioner's representatives used to appear before the officers of the IT Department on a very frequent basis in respect of all its matters, and not once was it ever mentioned that the appeals were disposed off. In fact, the Petitioner also filed all its audited financials with the Department.

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31. While so, when the Petitioner's representative, Mr. Manu Ittina, had gone in the first week of March 2022 to meet with one of the Officers of the IT Department in relation its 2018 application for lifting of attachment of the properties of the Petitioner group of companies, he was informed that he should endeavour to get the Petitioner's appeals for AYs 2006-07 and 2007-08 also disposed off. On being informed of this, the Petitioner addressed a letter to the ITAT seeking to know the status of the appeals and hoping to get a date assigned for hearing. A true copy of the letter is annexed as Annexure P.

32. To the utter shock of the Petitioner, it received a letter dated. 31.03.2022 from the ITAT informing it that its appeals for AYs 2006- 07 and 2007-08 were disposed off way back on 22.02.2013 itself. What is more, it is stated that the said order was sent to it by RPAD on 01.03.2013. A true copy of the ITAT's letter dated 31.03.2022 is annexed as Annexure Q.

33. The Petitioner, on receipt of the above letter, conducted a thorough and extensive search of all its records in the hope of finding the order said to have been passed by the ITAT. However, despite its best efforts, it could not locate any letter from the ITAT nor

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any order dated 22.02.2013. Consequently, it filed a letter before the ITAT on 22.04.2022 stating that it had not received any order dated 22.02.2013 from the ITAT and thus it sought for a certified copy of the said order after having paid the requisite fees for the same. A true copy of the said Petitioner's letter dated 22-04-2022 is annexed as Annexure R.

34. In response, the certified copy of the impugned order dated 22.02.2013 passed by the ITAT was handed over to the Petitioner's representative on 29.04.2022. As stated above, the certified copy of the impugned order is annexed as Annexure A.

35. On examining the order, the Petitioner was utterly dismayed to note that the ITAT had upheld the 3rd Respondent's order dismissing its appeals for AYs 2006-07 and 2007-08 on the ground of non-remittance of admitted tax as per S.249(4)(a) of the ITAT by giving a finding that the same was just and appropriate. Most significantly, as a result of the ITAT's impugned order upholding the rejection of its appeals for AYs 2006-07 and 2007-08 on the preliminary issue of non-remittance of admitted tax, the 1st Respondent's orders on the merits of the issue arising in the said appeals, i.e. disallowance of its claim for deduction under

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S.80-IB, remained undisturbed despite the fact that the basis for the disallowance in these 2 AYs is admittedly found in the assessment order for AY 2004-05 which has subsequently been set aside by the 4th Respondent which in turn has been upheld by the ITAT and by this Hon'ble Court vide its aforesaid orders.

17. The above grounds taken by the appellant are not appealing, nor convincing nor do they show sufficient cause. Admittedly the appeals in question have been filed by the respondent herein for the Assessment Years 2006-07 to 2007-08 before the Commissioner (Appeals). It appears that, against Assessment Years: 2004-05 and 2005-06, the Revenue had come in appeals, which were dismissed. In any case, the Assessment Years with which we are concerned are primarily the Assessment Years 2006-07 and 2007-08 and it is a fact the tax due was not deposited. As such the appeals were not- maintainable. The conceded position is that, when the appeals were dismissed vide order dated 12.04.2012, the Respondent had filed 02 applications for the restoration of the appeals. The appeals were restored on the file on

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30.11.2012 and were listed on 12.02.2013, on which date concedingly there was no appearance for the Respondent. The appeals were adjourned to 13.02.2013, when also no one had appeared for the respondent. Thereafter the appeals were listed on 22.02.2013 when the same were dismissed. The Tribunal is justified by noting the ground on which the Commissioner (Appeals) has not admitted the appeals ie., on the ground of non- payment of Taxes due, for dismissing the appeals. Surely when no one has appeared, the Tribunal is justified in dismissing the appeals. We note the order dated 13.02.2013 has not been filed on record. The ground that the respondent came to know about the dismissal of the appeals only on 29.04.2022, cannot be accepted for the reasons: (i) As the same knowledge about the dismissal was after nine years; (ii) It is noted that the date of hearing was fixed on 12.02.2013, when no one appeared; (iii) Even on 13.02.2013 no one appeared; (iv) No reasoning given why it did not pursue the appeals or made efforts to know the fate of the appeals.

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18. The facts noted by the Tribunal, which we have referred to above, are not referred to by the Respondent in its writ petition before the learned Single Judge. Rather an impression has been given that the Respondent was expecting a communication from the ITAT in respect of hearing of the said appeals. It is not known on what basis such a presumption has been drawn. On 30.11.2012, on restoration of the appeals, the date of 12.02.2013 was fixed. There was no reason for the Respondent not to appear before the Tribunal in that hearing. There is also no justification given for non- appearance on the next date of hearing i.e., on 13.02.2013 and also on 22.02.2013. There are no averments disputing the listing of the appeals on 12.02.2013, 13.02.2013 or on 22.02.2013 in the writ petition. In fact, if the factual basis noted by the Tribunal was not correct, specific averments should have been made in the writ petition that the appeals were not listed either on 12.02.2013, 13.02.2013 or on 22.02.2013. There is also no averment that on 30.11.2012 no date of hearing was given. It should have

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been specifically averred that a procedure has been evolved by the Tribunal to inform the date of hearing to a party. The respondent has also not stated, why it did not ascertain the status of the appeals for nine years for the Respondent to appear. So, in that sense, the facts noted by the Tribunal in its order dated 22.02.2013 for dismissing the appeals are justified. The Respondent had not challenged the order in appeal before this Court and thereby allowed the order to attain finality. So, the plea of Mr.Shashank that the Respondent came to know about the dismissal of the appeal from one of the Officers of the Income Tax Department only on 29.04.2022, which has given cause of action for the Respondent to approach the High Court cannot be accepted. Further discharging tax liability after 09 years would also not give the cause of action for the petitioner without challenging the orders of the years 2010 and 2013 immediately thereafter to file a writ petition. We are of the view that the learned Single Judge has not considered the aforesaid facts in proper perspective resulting in the passing of the impugned order.

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19. The reliance placed by the learned Single Judge on the judgment in the case of Komalakshi (supra) is concerned, the issue which arose before the Division Bench of this Court is, Whether the order passed by the Commissioner (appeal) as, confirmed in the appeals before the Tribunal is justified. In the said case, this court in Paragraphs-12 and 13, has stated as under:-

"12. Being aggrieved by various additions and disallowances made in the Assessment Orders for the years mentioned above, resulting in high pitched artificial demands, the petitioner company instituted statutory appeals before the learned Commissioner of Income Tax (Appeals) for cause of justice.

13. It was brought to the knowledge of the department on various occasions that the department has attached stock in trade, though various representations were made by Sri Manu Ittina after the demise of Late Sri I Mahabaleswarappa, to release the attachment of stock-in-trade."

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20. In the said case, the Tribunal passed an order on 08.11.2006, (though the date(s) of the Assessing Officer/Commissioner (Appeals) is/are not forthcoming). It is a case where the appellant therein had filed an Income Tax Appeal unlike a writ petition in the present case in the year 2006. It is not the case that, there was a delay of more than 09 years in the appellant therein approaching the High Court in the appeal. The issue therein was, Whether the Commissioner (Appeals) and the Tribunal were justified in rejecting the appeals for non-payment of admitted Tax liability. It was in that background, the learned counsel had stated before the Court that, the Assessee shall make good the admitted Tax, for the Tribunal to decide the appeals, which were dismissed. It was in that fact-situation, this Court had passed the order as is observed in Paragraphs: 12 & 13, which we have re-produced above. The said order was passed by this Court in 2007. The judgment has no applicability to the facts of this case. The writ petition which lays a challenge to the orders of the years 2010 and 2013, filed in the year 2022 is entertained and

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allowed, that too on the ground that the Tax liability has been discharged by the Assessee immediately before the filing of the writ petition in the year 2022. Such an order if at all is allowed to stand, shall have precedential value resulting in every assessment order susceptible to be re- opened after long lapse of time, only on the ground the Assessee has decided to pay the tax liability due as per his convenience. That cannot be an intent of the law, more so when the concept of delay and laches in the realm of writ jurisdiction is well-settled, that too, when the Respondent-Assessee was within its right to file an appeal before this Court under the provisions of the I.T. Act, which admittedly has not been availed of by the Assessee/Respondent. In the facts of the case the remedy of writ jurisdiction could not have been invoked in view of the remedy available under the I.T. Act that too, after 09 years, challenging the order of the Commissioner of Income Tax (appeals) and ITAT.

21. The judgments which have been relied upon by Mr.Shankar for the propositions which we have

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highlighted, have no applicability to the facts of this case and in view of our findings above, as they are clearly distinguishable on facts. We are of the view that the learned Single Judge has erred in allowing the writ petition.

22. The writ appeal is allowed. The impugned order dated 09.09.2022 passed by the learned Single Judge in Writ Petition No.13329/2022 is set aside. There shall be no order as to costs.

Sd/-

(V KAMESWAR RAO) JUDGE Sd/-

(S RACHAIAH) JUDGE KGR*