Madras High Court
Kalidoss Bharath vs The Assistant Commissioner Of ... on 23 July, 2021
W.P(MD)No.1952 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.07.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)No.1952 of 2020
and
WMP(MD)Nos.1637 and 1638 of 2020
Kalidoss Bharath ... Petitioner
vs.
The Assistant Commissioner of Income Tax,
Income Tax Circle 2(1) Trichy,
3rd Floor, Trichy Main Building,
Williams Road, Cantonment,
Tiruchirappalli-620 001. ... Respondent
Petition filed under Article 226 of the Constitution of India, for
issuance of Writ of Certiorari, to call for the records of the respondent in
PAN AFVPB1366G vide Order
No.ITBA/AST/S/143(3)/2019-20/1022872487(1) dated 22.12.2019 and
raised a demand under Section 156 of the Income Tax Act in
No.ITBA/AST/S/156/2019-20/1022872526(1) dated 22.12.2019 and
quash the same as ex-facie illegal, arbitrary, without jurisdiction and
against the principles of natural justice.
For Petitioner : Mr.K.Soundararajan
For Respondent : Mr.N.Dilip Kumar, Senior Standing Counsel
1/9
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W.P(MD)No.1952 of 2020
ORDER
This writ petition has been filed for issuance of a Writ of
Certiorari, to call for the records of the respondent in PAN
AFVPB1366G vide Order
No.ITBA/AST/S/143(3)/2019-20/1022872487(1) dated 22.12.2019 and
raised a demand under Section 156 of the Income Tax Act in
No.ITBA/AST/S/156/2019-20/1022872526(1) dated 22.12.2019 and
quash the same as ex-facie illegal, arbitrary, without jurisdiction and as
against the principles of natural justice.
2.The petitioner is a dealer in Petroleum products and for the
assessment year 2017-18, the petitioner filed audit report under Section
44AB of the Income Tax Act and on that basis, assessment has been
completed. Subsequently, a notice was issued by the Deputy
Commissioner of Income Tax, Thanjavur, on 04.09.2019 under Section
142(1) of the Act, for which, a reply was filed on 15.11.2019 enclosing
the statement showing the month-wise purchase and sales effected
during the year. Subsequently, the respondent had issued a notice under
Section 142(1) of the Act seeking fresh details including the details for
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W.P(MD)No.1952 of 2020
the assessment year 2016-2017 even though the assessment year is
2017-18. The petitioner sent further reply on 09.12.2019 and thereafter
vide letter dated 12.12.2019 sought further time to file the voluminous
details upto 26.12.2019. The respondent did not consider the letter dated
12.12.2019 but referred the letter dated 09.12.2019 and passed the
assessment order and closed the Portal on 17.12.2019 and therefore, the
petitioner has filed the present writ petition stating that the impugned
order has been passed against the principles of natural justice and also
against the circular issued by the Directorate of Income Tax on
26.12.2019 in which it was informed that the facility for electronic
submission of documents shall be automatically closed on 29.12.2019.
3.The learned counsel for the petitioner would state that the
respondent has no jurisdiction to assess under e-proceedings when
admittedly Section 143(3A) of the Income Tax Act was amended with
effect from 01.04.2020 giving the right to make e-assessment
proceedings under Section 144 and therefore, the e-assessment order
passed by the respondent is bad in law. The learned counsel for the
petitioner would further state that the respondent has assessed the
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W.P(MD)No.1952 of 2020
income under the amended Section 115BBE of the Act when admittedly
the amendment came into effect on 01.04.2017 i.e., from the previous
year 2017-2018 i.e., from the assessment year 2018-2019 and not for the
assessment year 2017-2018. According to the petitioner, because of the
wrong application of the amended provision, huge liability was raised by
the respondent and the petitioner is put to great hardship and mental
agony and therefore, the petitioner is before this Court.
4.He would further state that even on similar occasion in W.P.No.
1178 and 1182 of 2020 dated 27.01.2020, the assessment orders made
without granting further time as requested by the assessee, were set aside
and the matter was remitted to the respondent for making de nova
assessment. Subsequently, the respondent in his proceedings dated
26.03.2021, has passed an order accepting the claim of the assessee and
therefore, the learned counsel for the petitioner would state that the
assessment orders passed by the respondent herein without giving
opportunity to the petitioner herein in spite of his request for
adjournment, is a clear violation of the principles of natural justice and
therefore, the impugned orders are liable to be set aside on the said
ground.
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W.P(MD)No.1952 of 2020
5.The learned Senior Standing Counsel for the respondent would
state that when there is an effective statutory appeal available to the
petitioner, he cannot bypass the same. He would further state that the
petitioner's case was selected for scrutiny through Computer Aided
Scrutiny Selection(CASS) in Income Tax Business Application Module
and a notice under Section 143(2) of the Act was issued on 09.08.2018
by the Assistant Commissioner of Income Tax, Circle-1, Thanjavur.
Further notice under Section 142(1) was issued on 04.09.2019 calling for
details in connection with cash deposits made during demonitization
period to be submitted on or before 12.09.2019 electronically.
According to the respondent, the petitioner had submitted details on
15.11.2019 partially and thereafter further notice under Section 142(1)
read with Section 129 was issued on 03.12.2019 to furnish accounts and
documents to be submitted on or before 07.12.2019. He would further
state that that petitioner has filed adjournment petition dated 10.12.2019
seeking further extension of time upto 26.12.2019 and the Assessing
Officer did not entertain the adjournment petition because the time limit
to complete the assessment expired on 31.12.2019 and therefore, the
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W.P(MD)No.1952 of 2020
assessment order was concluded under Section 144 of the Act i.e., best
judgment assessment and the impugned orders came to be passed.
6.Heard the learned counsel for the petitioner as well as the
learned Senior Standing Counsel for the respondent.
7.Admittedly, the assessment order has been concluded in spite of
the petitioner's request seeking further time for making his reply.
Admittedly, the petitioner was not given opportunity by the respondent
by not considering his adjournment petition dated 10.12.2019, but has
referred to only the letter dated 09.12.2019 and has closed the Portal on
17.12.2019. The main contention raised in the counter is that the
Assessing Officer did not entertain the adjournment petition of the
petitioner, because the time limit to complete the assessment expired on
31.12.2019. The petitioner has not submitted the details as called for
through the notice dated 03.12.2019. Since the petitioner has failed to
discharge the burden of proof for the cash deposit of SBN note to the
tune of Rs.1,84,87,858/-, the respondent had no other option except to
conclude the assessment under Section 144 of the Act i.e., best judgment
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W.P(MD)No.1952 of 2020
assessment. The said contention cannot be accepted for the simple
reason that the petitioner has filed adjournment petition on 12.12.2019
seeking further time upto 26.12.2019. Admittedly, the Assessing Officer
did not entertain the said adjournment petition.
8.This Court in similar matters cited by the petitioner where
assessment orders passed without granting further time, set aside the
assessment orders therein and remitted the matter to the authority
concerned for fresh consideration. Admittedly, here also, the petitioner's
petition for adjournment has not been considered and therefore, it is a
case of violation of principles of natural justice. No personal hearing
was also granted. If atleast personal hearing is granted to the petitioner,
the petitioner would have explained his case. Though the respondent has
raised many other contentions, since the impugned orders have been
passed without considering the petitioner's adjournment petition, without
adverting to the other merits of the case, only on the ground of violation
of principles of natural justice, I am inclined to set aside the impugned
orders.
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W.P(MD)No.1952 of 2020
9.Accordingly, the impugned orders of the respondent in PAN
AFVPB1366G vide Order
No.ITBA/AST/S/143(3)/2019-20/1022872487(1) dated 22.12.2019 and
the demand under Section 156 of the Income Tax Act in
No.ITBA/AST/S/156/2019-20/1022872526(1) dated 22.12.2019 are set
aside and the matter is remitted back to the respondent to pass fresh
order after giving opportunity to the petitioner for making his detailed
reply and after affording opportunity of personal hearing, within a period
of three months from the date of receipt of a copy of this order.
10.With the above direction, this Writ Petition is allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes / No
Internet : Yes / No
bala 23.07.2021
To
The Assistant Commissioner of Income Tax,
Income Tax Circle 2(1) Trichy,
3rd Floor, Trichy Main Building,
Williams Road, Cantonment,
Tiruchirappalli-620 001.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.1952 of 2020
J.NISHA BANU, J.
bala
ORDER MADE IN
W.P(MD)No.1952 of 2020
DATED : 23.07.2021
https://www.mhc.tn.gov.in/judis/
