Tripunithura Thulu Brahmana ... vs The Deputy Commissioner Of Income Tax
2024 Latest Caselaw 26910 Ker

Kerala High Court

Tripunithura Thulu Brahmana ... vs The Deputy Commissioner Of Income Tax on 6 September, 2024

Author: P Gopinath

Bench: P Gopinath

                                                          2024:KER:67798
W.P (C) No.31632/2024             -1-

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE GOPINATH P.

     FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946

                        WP(C) NO. 31632 OF 2024

PETITIONER/S:

          TRIPUNITHURA THULU BRAHMANA YOGAM(REPRESENTED BY SRI.
          RAMACHANDRAN, SECRETARY),
          AGED 72 YEARS
          TRIPUNITHURA (PO).,ERNAKULAM, PIN - 682301

          BY ADVS.
          K.N.SREEKUMARAN
          P.J.ANILKUMAR (A-1768)
          N.SANTHOSHKUMAR


RESPONDENT/S:

    1     THE DEPUTY COMMISSIONER OF INCOME TAX,
          INCOME TAX DEPARTMENT CORPORATE CIRCLE 1(1) 4TH FLOOR,
          C R BUILDING I.S PRESS ROAD, ERNAKULAM, PIN - 682018

    2     THE PRINCIPLE CHIEF COMMISSIONER OF INCOME TAX,
          INCOME TAX DEPARTMENT 2ND FLOOR, C R BUILDING,
          I.S.PRESS ROAD, ERNAKULAM, PIN - 682018


OTHER PRESENT:

          SRI. JOSE JOSEPH (SR SC) SRI. CYRIAC TOM(SC) FOR IT
          DEPT


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                                2024:KER:67798
W.P (C) No.31632/2024                -2-

                              JUDGMENT

The petitioner has approached this court challenging Ext.P5 order

under Section 148 A of the Income Tax Act, 1961 ('the 1961 Act) and the

consequential notice issued under Section 148 of the 1961 Act (Ext.P6) on a

short ground. It is submitted that on receiving show cause notice, the

petitioner requested for time to file a reply and such reply was filed on 21-08-

2024. It is submitted that Ext.P5 order was passed on 29-08-2024 without

considering the reply submitted by the petitioner on the ground that the reply

was not submitted before 19-08-2024.

2. The learned Senior Standing Counsel appearing for the Income Tax

Department would submit that on receipt of show cause notice, the petitioner

requested for one week time to file reply and no reply was filed within the

time permitted by the Assessing Authority. It is submitted that it is in such

circumstances that the Assessing Authority proceed to pass Ext.P5 order.

However, it is not disputed that the reply to the show cause notice was filed by

the petitioner on 21-08-2024 and Ext.P5 order was passed on 29-08-2024.

3. Having heard the learned counsel for the petitioner and the learned

Senior Standing Counsel appearing for the respondent Department and

having regard to the facts and circumstances of the case, I am of the view that 2024:KER:67798

the petitioner is entitled to succeed. Though the petitioner might not have

filed a reply within the time permitted by the Assessing Authority, it remains

a fact that he had filed reply on 21-08-2024 and Ext.P5 order was passed only

on 29-08-2024. Therefore the non-consideration of the reply submitted by

the petitioner takes away the right granted to the petitioner in terms of the

provisions contained in Section 148 A of the 1961 Act. Therefore, this writ

petition is allowed by setting aside Ext.P5 order and directing the Assessing

Authority to consider the reply submitted by the petitioner and to pass fresh

orders in terms of the provisions contained in Section 148A of the 1961 Act

after affording an opportunity of hearing to the petitioner. I make it clear that

I have not expressed any opinion on the merits of the matter and it is open to

the Assessing Authority to pass fresh orders in accordance with the law. Since

Ext.P6 is consequential to Ext.P5, Ext.P6 notice will also stand quashed

making it clear that a fresh notice under Section 148 may be issued to the

petitioner, if after adjudicating the show cause notice under Section 148A, the

competent authority is of the opinion that such notice must issue.

Sd/-

GOPINATH P. JUDGE

AMG 2024:KER:67798

APPENDIX OF WP(C) 31632/2024

PETITIONER EXHIBITS

Exhibit -P1 TRUE COPY OF THE PETITIONER'S REGISTRATION CERTIFICATE UNDER TRAVANCORE COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT 1955 DATED 07..08..2017 ALONG WITH ENGLISH TRANSLATION

Exhibit-P2 TRUE COPY OF THE NOTICE DATED 29..07..2024 WITH DIN:ITBA/AST/F/148A(SCN)/2024-25/1067117768(1) ISSUED BY THE 1ST RESPONDENT

Exhibit-P3 TRUE COPY OF THE ADJOURNMENT REQUEST FILED ON PORTAL DATED 06..08..2024 VIDE ACKNOWLEDGEMENT NUMBER354313411060824

Exhibit-P4 TRUE COPY OF THE REPLY U/S 148A(C) FILED ON

21..08..2024 ALONG WITH SUPPORTING DOCUMENTS BEFORE THE 1ST RESPONDENT THROUGH ONLINE PORTAL VIDE ACKNOWLEDGEMENT NUMBER387838241210824.

Exhibit-P5 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT U/S.148A(D) OF THE ACT DATED 29..08..2024 WITH DIN:ITBA/AST/F/148A/2024-25/1068138678(1)

Exhibit -P6 TRUE COPY OF THE NOTICE U/S. 148 OF THE ACT DATED

30..08..2024, ISSUED BY THE 1ST RESPONDENT WITH DIN: ITBA/AST/S/148_1/2024-25/1068172714(1)

Exhibit -P7 TRUE COPY OF THE ORDER IN RED CHILLI INTERNATIONAL SALES VS. INCOME TAX OFFICER & ANR, SLA(C) 86/2023 DATED 03..01..2023

Exhibit- P8 TRUE COPY OF THE ORDER IN ASAMANNOOR SERVICE CO-

OPERATIVE BANK LTD VERSUS THE INCOME TAX OFFICER, WARD-2,ALUVA , W.P.(C) 12595/2023 DATED

17..10..2023