Unisource Hydro Carbon Services ... vs Union Of India & Ors
2022 Latest Caselaw 2289 Cal

Item no. 03


                IN THE HIGH COURT AT CALCUTTA
                           CIVIL APPELLATE JURISDICTION
                                  APPELLATE SIDE

Present:
The Hon'ble Justice T.S. Sivagnanam
              And
The Hon'ble Justice Hiranmay Bhattacharyya


                                MAT 337 of 2022
                                        with
                                IA No. CAN 1 of 2022


               Unisource Hydro Carbon Services Private Limited & anr.
                                       vs.
                             Union of India & ors.


Appearance:
For the Appellants         :   Mr. Himangshu Kr. Ray

For the Respondents        :   Ms. Smita Das De

Mr. Soumen Bhattacharya

Heard on : 22.04.2022

Judgment on : 22.04.2022

T.S. Sivagnanam J.:

This intra court appeal filed by the appellant/writ petitioner is

directed against an order dated 2.3.2022 in WPA 2852 of 2022. The

appellant filed the said writ petition challenging the order passed by the

Principal Commissioner of Income Tax, Kolkata-1 (PCIT) dated

15.12.2021 under Section 264 of the Income Tax Act, 1961 (in short,

'the Act') dismissing the revision petition filed by the appellants. From

paragraph 5 of the impugned order, we find that the order was an ex

parte order since according to the PCIT despite notice being sent to the

assessee through e-mail none appeared for the hearing. That apart, the

PCIT would observe that earlier the appellant had filed a writ petition

before this court in WPA 11041 of 2021 challenging the assessment

order dated 04.06.2021 under Section 143(3) read with Section 144(B) of

the said Act. The appellant had filed the writ petition challenging the

order of the PCIT on the ground that no notice was received by the

assessee and that the notice has been sent to e-mail address which was

no longer in use and despite the assessee having made the same known

to the Department, the notice appeared to have been sent to the old e-

mail address. Apart from that, the appellant had also contended that as

to how the assessment order dated 04.06.2021 was bad in law.

The learned Single Judge had dismissed the writ petition by

the impugned order primarily on the ground that the earlier writ petition

filed by the appellant was dismissed by order dated 25.08.2021 and,

therefore, the appellant cannot also again challenge the assessment

order indirectly by questioning the order passed by the PCIT dated

15.12.2021 under Section 264 of the Act. The correctness of the order

passed by the learned Single Judge is being challenged before us.

We have heard learned counsel for the parties at length.

On going through the order dated 25.08.2021 in WPA 11041 of

2021 we find that the appellant had challenged the assessment order

dated 04.06.2021 primarily on the ground of violation of principles of

natural justice and as the appellant was not granted adequate and

effective opportunity by the assessing officer and, therefore, the

assessing officer had committed a jurisdictional error. It appears that

the assessment order has been challenged also on merits. The learned

Single Judge while dismissing the writ petition by order dated

25.08.2021 did not agree with the contention of the appellant that the

assessment order suffered from any jurisdictional error as the appellant

have been granted effective opportunity so far as the merits of the

assessment is concerned, the learned Single Judge in page 4 of the

impugned order dated 25.08.2021 observed as follows:

"... ... ... So far as the challenge to the impugned Assessment Order on merit and dealing with facts and evidences are concerned I am of the considered view that the Income Tax Act is a self-complete code and the petitioner has specific statutory appellate forum for redressal of its grievance if so aggrieved against the impugned assessment order, before the Commissioner of Income Tax (Appeals) and further appeal before the Income Tax Appellate Tribunal which has the power to decide both on facts as well as on law and further before the High Court under Section 260A of the Income Tax Act. In my considered opinion High Court sitting in Writ Jurisdiction under Article 226 of the Constitution of India should not disturb or interfere with the finding of the Assessing Officer in his assessment order which are based on material facts and evidence and to substitute the findings of an Assessing Officer in the assessment order with its own finding when statutory alternative remedy for adjudication of assessment order on merit, evidence and law is available under Income Tax Act, 1961 before the Appellate Forum. ... ... ..."

Having rendered the above finding the learned writ court

proceeded to hear as to whether there was violation of principles of

natural justice as contended by the appellant and ultimately held that

there was no violation of principles of natural justice. Therefore, we find

that the learned writ Court in its order dated 25.08.2021 has not

rendered any finding on the merits of the assessment as canvassed by

the appellant.

Therefore, the PCIT had committed an error in rejecting the

revision petition on the ground that already the appellant had filed the

writ petition and challenged the assessment order and the same has

been dismissed. The dismissal of the writ petition was not on the merits

of the assessment. Therefore, the PCIT committed an error in making

such observation. The learned writ court has also faulted the assessee

for having not filed a regular appeal as against the order of the

assessment by approaching the Commissioner under Section 246(A) of

the said Act. It may be true that the appeal might have been time

barred but nevertheless the appellant assessee cannot be foreclosed

from availing the revisional remedy under Section 264 of the said Act

which is an independent remedy provided to an aggrieved person in

terms of the provisions of the Act. Therefore, the decision is required to

be taken by the PCIT on merits of the matter. Though there is allegation

made that the notice have been sent to the e-mail address which was

not in operation, we do not propose to go into the correctness of the said

submission as we are of the considered view that an adequate

opportunity should be granted to the assessee to pursue the revision

petition filed under Section 264 of the Act and since the revision petition

has been manually presented, the assessee has also to be afforded an

opportunity of personal hearing. We are of the view that PCIT has to

take a decision on merits and in accordance with law.

For the reasons given hereinabove, the appeal stands allowed

and the order passed by the PCIT, Kolkata -1 dated 15.12.2021 under

Section 264 of the Act is set aside and the revision petition is restored to

the file of the said authority. Consequently, the order passed in the writ

petition is set aside. The authority shall issue notice in writing to the

assessee and communicate the same through speed post to the address

mentioned in the revision petition in addition sent a copy of such notice

to the e-mail address provided by the assessee and fix a date for

personal hearing and on such date the appellant shall be permitted to

be represented by their authorized representative and are at liberty to

place all the documents before the PCIT and after affording a reasonable

opportunity of hearing the authority shall pass a speaking order on

merits and in accordance with law. Accordingly, the application being

CAN 1 of 2022 is disposed of.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)

RP/Amitava (AR. CT.)