Calcutta High Court
Rose Bud Education Society And Another vs Union Of India And Others on 5 May, 2025
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
O-5
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/28/2025
IA NO: GA/1/2025, GA/2/2025
ROSE BUD EDUCATION SOCIETY AND ANOTHER
VS.
UNION OF INDIA AND OTHERS
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
DATE: 5TH MAY, 2025
Appearance:
Mr. Avra Mazumder, Adv.
Ms. Alisha Das, Adv.
Mr. Om Prakash Prasad, Adv.
Mr. Suman Bhowmik, Adv.
Mr. Samrat Das, Adv.
Ms. Elina Dey, Adv.
Mr. Sourendra Nath Banerjee, Adv.
...for Appellants
Mr. Tilak Mitra, Adv.
Mr. Soumen Bhattacharjee, Adv.
...for Respondent
The Court : We have heard Ms. Alisha Das, learned Advocate along with
Mr. Avra Mazumder, learned Advocate for the appellants/assessees.
This intra-court appeal by the assessees is directed against the order
dated 14th November, 2024 in WPO/710/2024. The appellants had challenged
the order passed by the Assessing Officer under Section 148A(d) of the Income
Tax Act, 1961 (the Act) dated March 28, 2023 and the consequential
assessment order dated March 22, 2024. The learned Single Bench was of the
opinion that the appellants should exhaust the appellate remedy available
under the Act and accordingly, disposed of the writ petition. It has been
recorded in the impugned order that none appeared for the respondents/
Income Tax Department.
We have directed Mr. Soumen Bhattacharjee, learned standing counsel
to appear on behalf of the Income tax Department and accept the notice. His
appearance along with the appearance of Mr. Tilak Mitra, learned senior
standing cousel, shall be regularized by the Department.
There is a delay of 90 days in filing this appeal. Considering the facts set
out in the application being GA/1/2025, we find sufficient cause has been
shown for not preferring the appeal within the period of limitation and
accordingly, we exercise discretion and condone the delay in filing the appeal.
GA/1/2025 is allowed.
As could be seen from the Memorandum of Appeal as well as the grounds
raised in the writ petition, the appellants did not question the order passed
under Section 148A(d) as well as the assessment order under Section 147 of
the Act on the merits of the matter but solely on the ground that it has been
passed in violation of the principles of natural justice. Therefore, we refrain
ourselves from entering into the merits of the matter and we have heard
learned Advocate appearing for the appellants as well as the learned Advocate
appearing for the respondent/Department.
As pointed out above, the short issue which falls for consideration is
whether there has been violation of principles of natural justice and if it is
found so, then it would fall within one of the explanations which would entitle
the Court exercising jurisdiction under Article 226 of the Constitution of India
to interfere with such orders despite there being an appellate remedy provided
under the Act. The fact, which culled out from the documents annexed to the
stay petition, is that the Assessing Officer issued notice under Section 148A(b)
of the Act on March 2, 2023 along with an annexure and was of the prima facie
view that an amount of Rs.3,26,10,140/- is the income of the assessee,
chargeable to tax, represented in the details of assets, has escaped assessment
or is likely to have escaped assessment for the assessment year 2019-20. The
assessees submitted their reply dated October 17, 2023 which was uploaded in
the Income Tax Portal. The appellants would state that the change of identity
and PAN number of the appellants and also various uploaded documents
established its case and also mentioned that a return was filed on September
5, 2019 and therefore, the information received from the second respondent,
namely, Income Tax Officer, Ward-1(1), Exempt, Kolkata, is incorrect.
Thereafter, the respondent No.5, namely National Faceless Assessment Centre
(NFAC) issued notice under Section 142(1) dated October 26, 2023 for which
the assessees submitted their reply on November 7, 2023 along with the
requisite documents which is stated to have been uploaded in the Income Tax
Portal and the assessees have also given acknowledgement number.
Subsequently, a show cause notice was issued on March 4, 2024 calling upon
the assessees to submit their response by March 8, 2024 and the assessees
would state that within the time permitted they uploaded the reply on March 7,
2024 in which detailed discussion on merit was made and all queries sought
for were fully explained. The assessees received an intimation on March 8,
2024 that the assessees will be afforded an opportunity of hearing through
video conferencing which was fixed on March 12, 2024 at 4 p.m. The assessees
appeared in the video conferencing meeting and it was stated that certain
verbal clarifications were sought for by the respondent No.5 for which the
assessees wanted to submit documents and clarifications, but their case is that
they could not upload the same in the Income Tax Portal. Therefore, by letter
dated March 14, 2024 they opted for an adjournment. The assessees' further
case is that without considering the submissions made by the assesses, vide
letter dated March 14, 2024 the Assessing Officer proceeded to pass an order
under Section 148A(d) of the Act dated March 22, 2024. Subsequently, the
assessment order was passed and challenging those orders, the writ petition
was filed.
On perusal of the assessment order, we find much of the facts stated by
the assessee, as noted above, is not in dispute. This is evident from Para 5.1 of
the assessment order dated March 22, 2024. The Assessing Officer would
admit that the assessee was granted time till March 14, 2023, but did not
furnish any reply, whereas the case of the assessees is that they could not
upload the necessary documents and therefore, they requested for
adjournment along with a brief explanation and the assessees would submit
that the finding of the Assessing Officer that no reply was filed by the assessees
till March 14, 2023 is factually incorrect.
Thus, considering the peculiar facts and circumstances of this case, it
appears that the assessees did not have sufficient opportunity to put-forth
their submissions in the form of documents to establish the merits of the
matter. It is not that as if the assessees were not diligent in contesting the
matter as could be seen from the various replies submitted by the assessees
and also the acknowledgement of the e-Proceedings which are enclosed in
pages 56 and 57 of the stay application. Therefore, we are of the view that one
more opportunity can be granted to the assessees to go before the Assessing
Officer, submit their documents and clarifications so that the assessees have
the satisfaction of placing all records before the Assessing Officer and that the
assessment can be redone. At this juncture, we take note of the apprehension
expressed by the learned Senior Standing Counsel appearing for the
Department that this order should not be taken as a precedent in all cases,
more particularly, when the assessee did not file the writ petition within the
period of limitation provided for filing a statutory appeal before the
Commissioner of Income Tax (Appeals).
However, as noted above, the facts of this case are peculiar and
moreover, the assessees stated to enjoy the Registration under Section 10(23C)
of the Act and they had also filed the copies of the Deed of Trust, certified copy
of the Registration under Section 12A and Section 80G and all other details as
has been noted by the Assessing Officer himself in paragraph 4.5 of the
assessment order dated March 22, 2024.
Thus, for the above reasons, we are inclined to interfere with the order of
assessment and remand the matter back to the Assessing Officer for fresh
consideration. Accordingly, the appeal is partly allowed and the assessment
order dated March 22, 2024 is set aside and the matter is remanded to the
Assessing Officer for fresh consideration.
The assessees are directed to place all documents including their written
submission before the Assessing Officer within a period of three weeks from the
date of receipt of the server copy of this order after which the assessees shall be
afforded an opportunity of hearing through the virtual mode and the
assessment shall be redone in accordance with law.
The assessees are at liberty to canvass all the grounds including the
ground which they have raised challenging the order passed under Section
148A(d) of the Act.
It is made clear that this judgment and order has been passed
considering the peculiar facts and circumstances of this case and not to be
treated as a precedent.
Needless to state that the assessees should cooperate in the assessment
proceedings and no request for adjournment shall be entertained.
The stay application, IA No: GA/2/2025, stands closed.
(T.S. SIVAGNANAM, CJ.)
(CHAITALI CHATTERJEE (DAS), J.)
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