Chowdhury Medine Agency & Ors vs Union Of India & Ors
2022 Latest Caselaw 3956 Cal

Form No. J(2)

            IN THE HIGH COURT AT CALCUTTA
                  Constitutional Writ Jurisdiction
                          Appellate Side

Present:
The Hon'ble Justice T.S.Sivagnanam
              And
The Hon'ble Justice Bivas Pattanayak


                      M.A.T. 781 of 2022
                               with
                       IA no. CAN 1 of 2022

                Chowdhury Medine Agency & Ors.
                              Vs.
                     Union of India & Ors.


For the Appellants           Mr.   Himangshu Kr. Ray
                             Mr.   Mohan Kumar Sanyal
                             Mr.   Dwaipayan Sanyal
                             Mr.   Arunesh Pathak

For the Respondents

/Income Tax                  Mr. Vipul Kundalia
                             Mr. Anurag Roy

Heard on          : 05.07.2022.

Judgment on       : 05.07.2022.


T.S.Sivagnanam:

This intra Court appeal by the appellants is directed against

the order dated 27.04.2022 in W.P.A. 6805 of 2022. The appellants

had filed the writ petition challenging the assessment order passed

under Section 144 of the Income Tax Act, 1961 (for short "the act")

for the assessment year 2017-18. Though several grounds were raised

in the writ petition, challenging the assessment order, some of them

touched upon the merits. Consequently, ground of challenge was

raised by contending that there is violation of principles of natural

justice inasmuch as notices were sent to the wrong address.

Learned advocate appearing for the appellants made elaborate

submission and referred to various materials to impress upon this

Court that the procedure to be adopted in assessment under Section

144 of the Act had not been adhered to. However, we cannot embark

upon the fact finding exercise in a Writ Court challenging the order of

assessment.

The learned single Bench was right in its approach, noting the

conduct of the appellants as in the opinion of the learned single

Bench, the appellants were running away from the problem without

facing the queries raised by the Income Tax authorities. Mr. Kundalia,

learned advocate for the Department would submit that records

placed by the appellants before the Writ Court will clearly show that

each of the context now advanced before the Court are factually

incorrect and the appellants had full knowledge of the procedures.

Furthermore, it is submitted that it is incorrect to state that notices

were sent to the wrong address and to support the same, screenshot

of the details available with the department was produced before us.

As mentioned above, in a writ petition we cannot undertake a

fact finding exercise. Though we agree with the observations made by

the learned single Bench while dismissing the writ petition, we are

unable to pursue ourselves to agree with the ultimate conclusion

arrived at by the learned single Bench by which the appellants were

denied remedy in the writ petition. We say so because as on date, the

appellants cannot file a statutory appeal as it is barred by limitation.

Going by dates and events, we find that between 15 th March 2020 and

28th February 2022, the Hon'ble Supreme Court has extended the

limitation period under various statutes for filing appeals, revisions,

etc. Though such order passed by the Hon'ble Supreme Court cannot

be applied to the case of the appellants, yet considering certain family

circumstances as pleaded by the learned advocate for the appellants,

we are of the view that the appellants should not be left remediless.

Clearly so, we also bear in mind the interest of revenue as

mentioned, the assessment is for the year 2017-18. The assessment

order was passed on 12th December 2019 demanding a tax of

Rs.26,75,206/- and the total demand inclusive of surcharge,

education cess, interests under Sections 234A and 234B of the Act is

rounded off to Rs.53,23,550/-. Apart from that, penalty notices have

been issued and separate proceedings have been initiated.

Considering the complex situation to which the appellants have been

pushed, particularly attributable to the own conduct and probably

some of which was on account of wrong address, we are of the view

that the appellants should not be prevented from pursuing remedy

which may be available to them under the law. We are of the opinion

that if the appellants are granted an opportunity to file a revision

before the concerned revisional authority under Section 264 of the Act

subject to certain conditions, interest of justice would be protected,

thereby the appellants will have an opportunity and on account of the

condition to be imposed, the interest of revenue shall also be

protected.

In the light of the above, following order is passed.

The appeal is allowed and the order passed in the writ petition

is set aside and there shall be a direction upon the appellants to

deposit a sum of Rs.10 lakhs before the appellate authority within six

weeks from date. On production of the deposit receipt, the appellants

would be entitled to file a revision under Section 264 of the Act before

the Commissioner which shall be entertained without rejecting the

same on the ground of limitation and the appellants will be at liberty

to move for stay of the penalty proceedings before the Commissioner

or before the appellate authority as may be advised for which the

appellants are granted 30 days time from the date of receipt of the

server copy of this order to deposit the amount in terms of the

aforesaid directions.

If the appellants comply with the above conditions within the

time stipulated, the revisional authorities should consider the revision

on merit and in accordance with law. In the event, the appellants fail

to comply with the above directions within the time stipulated, this

order will not apply to the appellants and the appeal will stand

automatically dismissed without further reference of this Court.

Consequently, the connected application stands disposed of.

(T.S.Sivagnanam, J.)

(Bivas Pattanayak, J.)

Saswata/Amitava Nag (AR CT.)