Ally Biju vs Assessment Unit
2023 Latest Caselaw 3676 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
                          WP(C) NO. 11140 OF 2023
PETITIONER/S:

           ALLY BIJU
           NET X TECHNOLOGIES,
           33/953E2, KADUPATH ROAD, VENNALA P.O,
           ERNAKULAM, KERALA, PIN - 682028

           BY ADVS.
           ANIL D. NAIR
           TELMA RAJU
           P.K.BIJU
           ANJANA A.
           AADITYA NAIR


RESPONDENT/S:

           ASSESSMENT UNIT
           INCOME TAX DEPARTMENT,
           NATIONAL FACELESS ASSESSMENT CENTRE (NFAC),
           NEW DELHI, PIN - 110001


           ADV JOSE JOSEPH -SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11140 OF 2023
                                   2



                             JUDGMENT

The petitioner, an assessee of Income Tax, has approached

this Court seeking the following reliefs:

"a. Call for the records leading to issuance of Exhibit P3 and quash the same by issuing a writ of certiorari.

b. pending hearing and final disposal of the writ petition, this Hon'ble Court be pleased to grant stay of recovery of tax due under Exhibit P3 and all further proceedings pursuant to Exhibit P4 and P5."

2. The grievance of the petitioner is that in response to Ext.

P1 show cause notice, the petitioner was supposed to submit a

reply on or before 11.03.2023. However, as 11.03.2023

happened to be a Saturday, the petitioner was under the

impression that the same could be submitted on the next working

day. Accordingly, he submitted the Ext. P2 reply 13.03.2023.

However, as per Ext. P3 order dated 21.03.2023, the assessment

has been finalized without taking into account Ext. P2 objection

submitted by the petitioner, presuming that the same was not

submitted within the stipulated time. In the said circumstances, WP(C) NO. 11140 OF 2023

the petitioner challenges Ext. P3 by highlighting the contention

that he was denied the opportunity to raise objections.

3. On the other hand, learned Standing Counsel appearing

for the respondent would submit that, since the facility of

submission of objection was being done through online mode, the

fact that the last day falls on a holiday is not significant. It was

pointed out that it was open for the petitioner to submit the

objections even on a holiday, and therefore the contentions

raised by the petitioner cannot be accepted.

4. After considering all the relevant aspects, I am of the

view that there is some force in the contentions of the learned

Standing Counsel appearing for the respondent. Since it is an

online facility, nothing prevented the petitioner from submitting

the objections within the time stipulated as per Ext. P1.

Therefore, as such, it cannot be concluded that there was any

violation of principles of natural justice on the part of the

respondent in not considering the objection submitted by the

petitioner. However, the fact remains that the assessment was

finalised without taking note of Ext. P2 objections, and therefore WP(C) NO. 11140 OF 2023

it is only proper that the petitioner raises all these contentions

before the Appellate Authority by filing a statutory appeal in this

regard.

5. In such circumstances, even though I am not inclined to

interfere with Ext. P3 order passed, this writ petition is disposed

of relegating the petitioner to approach the Appellate Authority

by submitting a statutory appeal. The stay of recovery

proceedings pursuant to Ext. P3 can also be sought by the

petitioner along with the appeal to be filed by filing appropriate

application. To enable the petitioner to avail the said remedy,

the recovery proceedings against the petitioner for realising

amount demanded in Ext. P3 shall be kept in abeyance until

21.04.2023. In case, the appeal and the stay petition are filed

within the said period, the stay of recovery proceedings shall

continue in force until a decision is taken on the stay petition.

This writ petition is disposed of.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE avs WP(C) NO. 11140 OF 2023

APPENDIX OF WP(C) 11140/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 7.3.2023 ISSUED BY THE RESPONDENT.

Exhibit P2 TRUE COPY OF REPLY DATED 13/03/2023 ALONG WITH ACKNOWLEDGMENT EVIDENCING THE DOCUMENTS BEING UPLOADED

Exhibit P3 TRUE COPY OF THE ASSESSMENT ORDER DATED 21.3.2023 ALONG WITH COMPUTATION ISSUED BY THE RESPONDENT

Exhibit P4 TRUE COPY OF NOTICE DATED 21.3.2023 BEARING DINNO.ITBA/PNL/S/270A/2022- 23/1051085785(1) ISSUED BY THE RESPONDENT.

Exhibit P5 TRUE COPY OF THE NOTICE DATED 21.3.2023 BEARING DINNO.ITBA/PNL/S/271AAC(1)/2022- 23/1051085889(1) ISSUED BY THE RESPONDENT.