TMI Blog1980 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners, not having filed their returns under the Act, were served with notices under s. 18(2) read with s. 36 of the Act on more than one occasion. Finally, they appeared before the respondent and produced certain documents. On the basis of the documents produced, and having regard to the evasive tactics adopted by the petitioners, the respondents issued notice in Form No. 5, prescribed under the Karnataka Agrl. I.T. Rules, 1957 (hereinafter referred to as " the Rules "), proposing to assess the petitioners for tax due in respect of 160 acres of " J " class lands cultivated by them. He estimated the gross income of the petitioners liable to tax at Rs. 26,848 and further proposed to tax 60 per cent. of the said income treating the remainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition is not maintainable inasmuch as the petitioners had an alternative remedy under s. 21 of the Act for having the assessment order set aside showing sufficient cause. Shri M. Rama Bhat, learned counsel appearing for the petitioners, has advanced only the contention pleaded, by placing reliance on a Division Bench ruling of this court in the case of Mallappa Kallappa Urge v. Agrl. ITO [1973] 91 ITR 529 (Mys). He has further pointed out that the Rules are silent as to what should happen if the notice issued by the authorities under the Act was not served in time to appear before the authorities on the date specified in the notice. He has, therefore, argued that in order to satisfy the requirement of the second proviso to s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the procedure followed by the ITO concerned in the aforementioned decision in issuing a second notice because the first notice had not been served on the petitioner before the date specified in the notice. On a perusal of the records produced by the learned Government pleader it is clear that the notice was served on the petitioners herein on March 19, 1979, at their village. The acknowledgement was received back at Dharwar on March 23, 1979. This itself indicates that Bannur, the place of residence of the petitioners, is somewhat distantly situated from Dharwar City, where the respondent has his office. If the notice was received on March 19, 1979, it is reasonable to presume that the petitioners could not on that date reach Dharwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goes to the very root of jurisdiction and in such cases where there is clear want of jurisdiction for the respondent to proceed with the completion of the assessment, then this court, under art. 226 of the Constitution, in spite of the alternative remedy, should interfere when it is satisfied about the inherent lack of jurisdiction. In the result, the assessment order, at Ex. B, bearing the date April 28, 1979, passed by the respondent is set aside. Consequently, the order of penalty imposed for concealment under s. 22 of the Act as also the demand notice tinder s. 21(2) of the Act, at Exs. C and D, respectively, are also set aside. However, liberty is reserved to the respondent-Agrl. ITO, Dharwar, to continue the proceedings from the st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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