Kerala High Court
Chams Branding Solutions India ... vs Deputy Commissioner Of Income Tax on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 9917 OF 2021
PETITIONER:
CHAMS BRANDING SOLUTIONS INDIA PVT.LTD.
31/673D1, CHAMS HOUSE,
S.A.ROAD, VYTTILA,
KOCHI-682 019,
REPRESENTED BY ITS MANAGING DIRECTOR
MR. MISBAH SALAM.
BY ADVS.
SRI.ANIL D. NAIR
SRI.R.SREEJITH
SMT.TELMA RAJU
SRI.SANGEETH JOSEPH JACOB
SMT.CHRISTINA ANNA PAUL
RESPONDENTS:
1 DEPUTY COMMISSIONER OF INCOME TAX
CPC, BANGALORE-560 500.
2 THE INCOME TAX OFFICER
NATIONAL eASSESSMENT CENTER (NeAC),
2ND FLOOR, E-RAMP, ROOM NO.401,
JAWAHARLAL NEHRU STADIUM,
NEW DELHI-110 003.
BY ADV.JOSE JOSEPH, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.10.2021, THE COURT ON 29.10.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.9917/21 -:2:-
BECHU KURIAN THOMAS, J.
-----------------------------------------
W.P.(C) No.9917 of 2021
----------------------------------------
Dated this the 29th day of October, 2021
JUDGMENT
Petitioner is involved in the business of Advertisement. It is an
assessee under the Income Tax Act, 1961 ('the Act' for brevity). For the
assessment year 2018-19, petitioner had filed its returns. Subsequently, it
alleges to have received notice issued under section 142(1) of the Act on
24.12.2019, pursuant to which a detailed reply was filed by the petitioner.
Petitioner claimed that no other notices were issued to the petitioner other
than the aforementioned notice dated 24.12.2019, a copy of which is
produced as Ext.P4. However, by order dated 15.03.2021, petitioner was
served with a huge demand, on the basis of an assessment alleged to
have been carried out under section 143(3) of the Act. Petitioner alleges
that the order of assessment is bad in law since no notices other than the
one under section 142(1) of the Act was ever served upon it and hence
there is a clear violation of the principles of natural justice.
2. A statement has been filed on behalf of the second respondent
wherein it is stated that petitioner was given several opportunities to
submit the details, including the notices on 28.09.2019, 24.12.2019,
04.03.2020, 28.07.2020, 17.12.2020 and 18.02.2021. It is also stated
that a further show-cause notice was issued on 12.03.2021 requesting the
petitioner to submit its replies against the proposed additions on or before
14.03.2021. According to the second respondent, on all the above-
referred occasions, petitioner failed to submit any details. It was in such
circumstances that Ext.P5 assessment order came to be issued.
3. I have heard Adv. Anil D.Nair, the learned counsel for the
petitioner as well as Adv.Jose Joseph, the learned Standing counsel for
the Income Tax Department.
4. Adv. Anil D.Nair vehemently contended that the order is bad in
law for violation of the principles of natural justice. After referring to
column 44 in Ext.P3 audit report, which was relied upon in the
assessment order, it was contended that, ex facie the assessment order is
perverse since the figures in column 44 of the audit report itself revealed
that those became applicable only from April, 2019 and that the figures
carved out by the Assessing Officer were wholly obscure and baseless.
5. Adv. Jose Joseph, the learned Standing Counsel for the
respondents' on the other hand, pointed out that, the pleadings in the writ
petition that petitioner had never received any notice other than Ext.P4, is
incorrect and that it had not approached this Court revealing the true
particulars. It was also submitted that, in any event, the issue raised by
the petitioner requires an appreciation of disputed facts and hence, this
Court ought not to interfere invoking the jurisdiction under Article 226 of
the Constitution of India. However, it was fairly conceded that there was a
technical error in the disallowance of Rs.2,18,27,419/-, which being an
apparent error, can be rectified under section 154 of the Act.
6. On a consideration of the contentions raised by both parties, I
am of the view that this is not a fit case to invoke the discretionary
jurisdiction of this Court under Article 226 of the Constitution of India, for
more reasons than one.
7. The assessment order under challenge was issued after granting
sufficient opportunity to the petitioner including various notices issued
under sections 143 and 142 of the Act. Petitioner had not replied to any of
those notices. Petitioner cannot thereafter, turn around and contend that it
was not granted an opportunity or that there was any violation of principles
of natural justice.
8. Though the last notice issued to the petitioner was on
12.03.2021, requiring it to reply on 14.03.2021, which in strict senso may
not appear to be a reasonable or sufficient period to submit a reply,
considering the background of the case and the repeated failure of the
petitioner to respond to any of the six prior notices issued on 28.09.2019,
24.12.2019, 04.03.2020, 28.07.2020, 17.12.2020 and 18.02.2021, I am of
the view that petitioner cannot claim the benefit of violation of principles of
natural justice. Petitioner's conduct reveals its adamant approach to
refrain from responding to notices.
9. The notice of 12.03.2021 requesting the petitioner to submit its
replies against the proposed additions on or before 14.03.2021 cannot be
viewed in isolation or dehors the past conduct of the petitioner. In fact,
even for the notice of 12-03-2021, petitioner had not even cared to reply
that he needs more time to respond. Violation of principles of natural
justice has to be viewed with reference to facts of each case also. A
person who had not responded to any notices issued in the past cannot,
without anything more, turnaround and complain, that in the last notice
issued he was not granted reasonable time to respond, especially when
such a request for time was not even sought as a reply to the last notice.
10. In this context, the absence of pleading about the five notices
issued to the petitioner and the omission to reveal in the writ petition, the
receipt of notices is singularly detrimental to the petitioner. In the writ
petition, petitioner asserted that it had not received any notice other than
the notice dated 24.12.2019. Petitioner failed to divulge the receipt of five
other notices. This conduct also must deprive the petitioner of the benefit
of exercise of the discretionary jurisdiction under Article 226 of the
Constitution of India.
11. In any event, it is trite law that this Court would be loath to
interfere where alternative and efficacious remedies are available for the
assessees. Article 226 is not meant to short circuit or circumvent statutory
procedures. it is only when the statutory remedies are entirely ill-suited to
meet the demands of extraordinary situations that the Court should
interfere under Article 226, especially in matters of taxation. Such a
situation is not existing in the instant case.
12. Further, in a recent decision of the Supreme Court, it was held
that, though not a bar, entertaining a writ petition must be only in
exceptional circumstances where there is a breach of fundamental rights
or a violation of the principles of natural justice or an excess of jurisdiction
or when there is a challenge to the vires of the statute. (See Assistant
Commissioner of State Tax and Others v. Commercial Steel Limited,
[(2021) SCC Online 884]. Since I have already held that in the facts of
this case there cannot be a justifiable case of violation of natural justice,
the exceptional circumstances mentioned above to invoke the remedy
under Article 226 is not available to the petitioner.
13. As rightly submitted by the learned Standing Counsel, though the
assessment order contains a technical issue in the computation
statement, that is a matter which can be rectified under section 154 of the
Act and hence the same need not be considered under Article 226. I find
force in the submission of the learned counsel.
14. In view of the above deliberations, I find no merit to interfere in
the matter, exercising the discretionary jurisdiction under Article 226 of the
Constitution of India. However, liberty of the petitioner to pursue its
statutory remedies is reserved.
The writ petition is accordingly dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 9917/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ACKNOWLEDGMENT DATED
4.10.2018 EVIDENCING RETURNS FILED BY
THE PETITIONER.
EXHIBIT P2 TRUE COPY OF ITR 6 DATED 1.10.2018 FILED
BY THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE AUDIT REPORT IN FORM
NO.3CA DATED 1.10.2018 FILED BY THE
PETITIONER.
EXHIBIT P4 TRUE COPY OF NOTICE ISSUED BY THE 2ND
RESPONDENT DATED 24.12.2019.
EXHIBIT P5 TRUE COPY OF THE ASSESSMENT ORDER DATED
15.3.2021 ALONG WITH COMPUTATION SHEET
AND NOTICE OF DEMAND.
EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 12.03.2021
FOR THE A.Y. 2018-19 ISSUED BY THE
RESPONDENT
EXHIBIT P7 TRUE COPY OF ACTUAL COMPUTATION IN TERMS
OF ITR ALONG WITH RE-CONCILIATION IN
TERMS OF 3CD
