Kerala High Court
Safferulla Ellyasu Kunju vs Income Tax Officer on 5 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
WP(C) NO. 24140 OF 2021
PETITIONER:
SAFFERULLA ELLYASU KUNJU,
KARUVATTUMADOM HOUSE,
PULIYOORAVANCH NORTH,
KOLLAM, KERALA-690 539.
BY
ADV.ANIL D. NAIR
ADV.TELMA RAJU
ADV.SANGEETH JOSEPH JACOB
ADV.CHRISTINA ANNA PAUL
ADV.EDATHARA VINEETA KRISHNAN
ADV.ARAVIND SREEKUMAR
RESPONDENTS:
1 INCOME TAX OFFICER,
NATIONAL FACELESS ASSESSMENT CENTRE,
NEW DELHI-110 003.
2 PRINCIPAL COMMISSIONER OF INCOME TAX,
NATIONAL FACELESS ASSESSMENT CENTRE,
NEW DELHI-110 003.
ADV.CHRISTOPHER ABRAHAM, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.24140/21 -:2:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.24140 of 2021
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Dated this the 5th day of November, 2021
JUDGMENT
Petitioner is an assessee under the Income Tax Act, 1961 (for
short 'the Act'). For the assessment year 2016-17, petitioner had
filed his returns on 17.10.2016, and the assessment was completed
by order dated 24.12.2018. However, the assessment order was set
aside by the Commissioner of Income Tax in exercise of the powers
under section 263 of the Act. Subsequently, petitioner was served
with a notice under section 142(1) of the Act on 14.09.2021 to which
a reply was given on 23.09.2021. Thereafter a show-cause notice
was issued on 27.09.2021 directing the petitioner to furnish
explanation if any by 23.59 hours on 28.09.2021. Though this Court
has been repeatedly noticing the short periods granted by the
Income Tax department to assessees to submit their replies, in the
instant case, petitioner by an exhaustive reply dated 28.09.2021,
answered the show-cause notice. Having regard to the period of
limitation staring against the proceedings, the assessing officer by
Ext.P7 order dated 29.09.2021 issued an assessment order. In
short, within a period of three days, show-cause, reply and the
assessment order were all issued and completed.
2. Petitioner complains against the assessment order on two
grounds; (i) sufficient period of time was not granted to give a proper
reply for the show-cause notice and (ii) even though petitioner had
filed a reply, the same was not considered, thereby violating the
principles of natural justice.
3. I have heard Adv.Anil D Nair, learned counsel for the
petitioner as well as Adv.Christopher Abraham, learned Standing
Counsel for the respondents.
4. Petitioner had replied to the show-cause notice issued on
27.09.2021, and that too, in an exhaustive manner, I am of the view
that the contention raised by the petitioner regarding absence of
sufficient time with respect to the show-cause notice has no basis on
the facts of the case, since, even within the limited period, petitioner
had furnished his reply.
5. However, I find merit in the contention raised by the
petitioner regarding non-consideration of the explanation submitted.
As mentioned earlier, an exhaustive reply was submitted by the
petitioner within the limited time available to him. The reply
submitted by the petitioner is produced as Ext.P5 which runs into
several pages. Unfortunately, while considering the reply, the
assessing officer has discarded the explanation offered by the
petitioner in one sentence as follows:- 'On perusal of the same it was
(sic) observed that assessee is not able to produce any documentary
evidence which may prove his claim beyond doubt to the satisfaction
of the assessing officer".
6. There is a clear indication of non-application of mind in the
above quoted observation. An opportunity for filing an explanation to
the show cause through a notice has a purpose. The contentions
raised by the assessee will have to be considered by the assessing
officer and either accepted or rejected the same with reasons.
Reasons being the soul of every decision, absence of reasons
indicates clear non-application of mind thereby rendering the order
susceptible for challenge on grounds of violation of natural justice.
The necessity to consider the objections raised by the assessees is
all the more significant at the stage of assessment, since it is one of
the edifices on which the right or obligation of an assessee
commences.
7. On a consideration of the assessment order Ext.P7, I find
that the same is vitiated on account of violation of the principles of
natural justice due to clear non-application of mind. Accordingly the
same is set aside. The assessing officer is directed to consider the
explanation offered by the petitioner and pass fresh orders of
assessment, within a period of three months from the date of receipt
of a copy of this judgment, after issuing notice of hearing to the
petitioner.
8. Since the assessment order is set aside, consequently
Ext.P8 and Ext.P9 notices for penalty shall also stand set aside.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 24140/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED
24.12.2019 ALONG WITH THE COMPUTATION
SHEET.
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED
14.09.2021.
EXHIBIT P3 TRUE COPY OF THE REPLY DATED 23.09.2021
ALONG WITH ANNEXURES.
EXHIBIT P4 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
27.09.2021.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 28.09.2021
ALONG WITH ANNEURES.
EXHIBIT P6 ACKNOWLEDGEMENT OF HAVING FILED LETTER
DATED 28.09.2021.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 29.09.2021.
EXHIBIT P8 TRUE COPY OF NOTICE OF PENALTY UNDER
SECTION 274 READ WITH SECTION 271(1)
(C).
EXHIBIT P9 TRUE COPY OF NOTICE FOR PENALTY UNDER
SECTION 274 READ WITH SECTION 271D.
EXHIBIT P10 TRUE COPY OF REPLY FILED TO NOTICE FOR
PENALTY UNDER SECTION 274 READ WITH
SECTION 271(1)(C) ON 21.10.2021.
EXHIBIT P11 TRUE COPY OF REPLY FILED TO NOTICE FOR
PENALTY UNDER SECTION 274 READ WITH
SECTION 271(1)D ON 21.10.2021.
