Calcutta High Court (Appellete Side)
Ishan Information Services ... vs Union Of India & Ors on 21 September, 2022
Item No.8.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 21.09.2022
DELIVERED ON:21.09.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE SUPRATIM BHATTACHARYA
M.A.T. No.1484 of 2022
With
I.A. No.CAN 1 of 2022
With
I.A. No.CAN 2 of 2022
Ishan Information Services Private Limited.
Vs.
Union of India & Ors.
Appearance:-
Mr. Abhratosh Majumder, Sr. Adv.,
Mr. Sutirtha Das ..... for the appellant.
Mr. Vipul Kundalia,
Mr. Amit Sharma,
Mr. Anurag Roy ... for the respondents.
2
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
Re: I.A. CAN 1 of 2022
1. This application has been filed to condone the delay of 84
days in filing the instant appeal.
2. We have heard Mr. Abhratosh Majumder, learned senior
counsel appearing for the appellant/assessee and Mr. Vipul
Kundalia, learned senior standing counsel duly assisted by Mr.
Mr. Amit Sharma, learned Advocate for the respondents.
3. We are satisfied with the reasons assigned in the affidavit
filed in support of the application. Accordingly, the delay in
filing the instant appeal is condoned.
4. The application being I.A. CAN 1 of 2022 is allowed.
Re: M.A.T. No.1484 of 2022
5. This intra Court appeal is directed against the order dated
18th May, 2022 in W.P.A. Nos.7908 of 2022, 7909 of 2022 and 7912
of 2022 by which the learned single Bench declined to grant any
interim order and directed the respondents/department to file
their affidavit in opposition. The appellant being aggrieved by
the same is before us by way of this appeal.
6. The short question, which falls for consideration is
whether the appellant had an adequate opportunity to put forth
its submissions to the show cause notice issued by the
respondents under section 144 of the Income Tax Act, 1961 (for
short "Act") dated 17th March, 2022. The appellants had filed its
response in the first case, which is taken as the sample case on
March 19, 2022 and as could be seen from the date seal of the
department, the said respondents received the same on March 21,
2022. However, in the assessment order dated 30 th March, 2022 for
the assessment year 2015-16, the assessing officer states that
the assessee never complied with the notices and show cause
notice issued and therefore, he has no other alternative but to
complete the assessment under section 144 as per the materials
available on record.
7. According to the appellant, no such assessment could have
been made because the relevant PAN namely AAACI5619Q has been
cancelled by the department themselves. Apart from the same,
other contentions were also raised in the reply dated March 19,
2022.
8. Mr. Majumder, learned senior counsel submitted that the
assessee was not communicated with the notice issued under
section 148 of the Act. If that be so, we grant liberty to the
appellant to make a request before the assessing officer for
serving a copy of the same together with the reasons recorded.
9. The learned senior standing counsel appearing for the
respondents submitted that the contention of the assessee that
the PAN has been cancelled is incorrect. In any event, we do not
propose to go into those aspects as they all touch upon the
merits of the matter. As we are satisfied that the appellant did
not have adequate opportunity to put forth its submission and
the reply to the show cause notice dated March 19, 2022 though
received by the office of the respondents has not been
considered, therefore on this short ground alone, we are
inclined to remand the matter to the assessing officer for fresh
consideration.
10. In the result, the appeal as well as the writ petition
stand disposed of and the assessment order is set aside and the
matter is remanded to the assessing officer for fresh
consideration. The assessing officer shall take into
consideration the reply filed by the assessee to the show cause
notice and all other documents as it may rely upon. The
assessing officer shall provide an opportunity of personal
hearing to the appellant or its authorised representative
through video conferencing or physical mode and pass a fresh
order on merits and in accordance with law.
11. We make it clear that we have not gone into the merits of
the matter and all issues are left to be agitated before the
assessing officer.
12. Accordingly, the appeal and I.A. No. CAN 2 of 2022 as well
as the writ petition stand disposed of/allowed.
13. During the course of hearing, Mr. Vipul Kundalia, learned
senior standing counsel for the respondents/department pointed
out that this Court since December 2021 has been disposing of
income tax appeals filed under section 260A of the Income Tax
Act, 1961 when the case is yet to be assigned ITA number. It
appears that on account of the same, the department has been
treating such orders as orders passed on application and
consequently, the full fee payable to the learned standing
counsels for the department is not paid and the disposal of the
appeal by a final judgment is treated as if it is a disposal of
an application. The conduct of the Income Tax department needs
to be deprecated. In order to ensure that the cases are not
pending, the Court has taken up the appeals on merits even when
the department or the assesee files the appeal and it is taken
up for admission on the first date. When the appeal is being
heard, all relevant documents are enclosed in the stay
application and in many of the cases though the appeals were
admitted, the Court has dispensed with filing of formal or
informal paper books. It is rather surprising as to why the
Ministry of Law and Justice and the Income Tax department have
shut their eyes to reality. The learned standing counsels, who
appear for the department come fully prepared in the matter
either while appearing for the department as an appellant or
defending the department in the appeals filed by the assessee.
In any event, what is required to be seen by the Ministry of Law
and Justice and the Income Tax department that this Court has
finally disposed of the appeal and it is a judgment and
therefore, fee payable to the learned standing counsels shall be
as per the amounts fixed in the notification for final disposal
of the appeal.
14. It appears that in several cases earlier, the Ministry of
Law and Justice and the Income Tax department has taken such a
stand negating part of the claim made by the learned standing
counsels. If that has been done, it is wholly illegal and not
sustainable. Therefore, we direct all the learned standing
counsels to re-submit their bills in all cases where the appeals
stood disposed of finally even prior the stage when the appeal
was assigned ITA number and such re-submitted bills shall be
processed and full fee shall be paid to the learned standing
counsels for final disposal of the appeal regardless of the fact
that ITA number has been given or not.
15. A copy of this order be communicated to the Principal
Commissioners of Income Tax, West Bengal and Sikkim for issuing
appropriate directions to their departmental officers by way of
a circular.
16. The learned senior Government Advocate, Ministry of Law and
Justice, Branch Secretariat, Kolkata is directed to ensure
strict compliance of the above directions and failure to do so
may result in adverse consequences.
17. A copy of this order is directed to be placed before the
Central Board of Direct Taxes by the Principal Commissioner of
Income Tax, West Bengal and Sikkim so that the Hon'ble Board
would be aware of the position prevailing in the High Court at
Calcutta qua the action of the Income Tax department and the
Ministry of Law and Justice, Branch Secretariat, Kolkata.
18. With the above directions, the appeal and the connected
application being CAN 2 of 2022 are disposed of.
19. No order as to costs.
20. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(SUPRATIM BHATTACHARYA, J.)
NAREN/PALLAB(AR.C)
