Madras High Court
M.Thirugnanam vs The Assistant Commissioner Of ... on 23 July, 2021
W.P(MD)No.1974 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.1974 of 2020
and
WMP(MD)Nos.1647 and 1648 of 2020
M.Thirugnanam ... 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 ACLPT8747Q vide Order
No.ITBA/AST/S/144/2019-20/1022911126(1) dated 23.12.2019 and
raised a demand under Section 156 of the Income Tax Act in
No.ITBA/AST/S/156/2019-20/1022911177(1) dated 23.12.2019 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
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.1974 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
BCCPS3685N vide Order No.ITBA/AST/S/144/2019-20/1022967569(1)
dated 24.12.2019 and raised a demand under Section 156 of the Income
Tax Act in No.ITBA/AST/S/156/2019-20/1022967579(1) dated
24.12.2019 and quash the same as ex-facie illegal, arbitrary, without
jurisdiction and against the principles of natural justice.
2.The petitioner is doing the business of hiring of vehicles and
supplying red gravel and for the assessment year 2017-18, the petitioner
filed return and the assessment has been completed. Subsequently, a
notice was issued by the Assistant Commissioner, Thanjavur, on
22.09.2018 under Section 143(2) of the Act and thereafter a notice under
Section 142(1) of the Act was issued on 21.10.2019 by the respondent.
The petitioner filed reply in part on 18.11.2019 and agreed to furnish the
other details at the time of personal hearing. Again on 22.11.2019,
further details were filed and the petitioner requested for personal
hearing. The respondent issued a notice under Section 142(1) of the Act
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W.P(MD)No.1974 of 2020
on 07.12.2019 seeking for the first time fresh details including the
details for the assessment year 2016-2017 even though the assessment
year is 2017-18 and granted time upto 10.12.2019. The petitioner filed
reply on 10.12.2019 seeking 15 days time for giving fresh details
requested. According to the petitioner, the respondent did not consider
the letter dated 10.12.2019 and passed the assessment order on
23.12.2019 without granting the time 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
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W.P(MD)No.1974 of 2020
petitioner would further state that the respondent has assessed the
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
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W.P(MD)No.1974 of 2020
therefore, the impugned orders are liable to be set aside on the said
ground.
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 22.09.2018
by the Assistant Commissioner, Thanjavur, through electronic mode.
Further notice under Section 142(1) was issued on 21.10.2019 calling for
details in connection with cash deposits made during demonitization
period to be submitted on or before 05.11.2019 electronically.
According to the respondent, the petitioner had submitted details on
18.11.2019 and 22.11.2019 partially and thereafter further notice under
Section 142(1) was issued on 07.12.2019 to furnish accounts and
documents to be submitted on or before 10.12.2019. He would further
state that that petitioner has filed adjournment petition dated 10.12.2019
seeking further extension time of 15 days and the Assessing Officer did
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W.P(MD)No.1974 of 2020
not entertain the adjournment petition because the time limit to complete
the assessment expired on 31.12.2019 and therefore, the 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 petition dated 10.12.2019 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 under Section 142(1) of the Act. Since the petitioner
has failed to discharge the burden of proof for the cash deposit of SBN
note to the tune of Rs.31,08,000/- and agricultural income of Rs.
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W.P(MD)No.1974 of 2020
7,43,800/- totalling Rs.38,51,800/-, the respondent had no other option
except to conclude the assessment under Section 144 of the Act i.e., best
judgment assessment. The said contention cannot be accepted for the
simple reason that the petitioner has filed adjournment petition dated
10.12.2019 seeking 15 days further time. 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.1974 of 2020
9.Accordingly, the impugned orders of the respondent in PAN
ACLPT8747Q vide Order No.ITBA/AST/S/144/2019-20/1022911126(1)
dated 23.12.2019 and raised a demand under Section 156 of the Income
Tax Act in No.ITBA/AST/S/156/2019-20/1022911177(1) dated
23.12.2019, 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.1974 of 2020
J.NISHA BANU, J.
bala
ORDER MADE IN
W.P(MD)No.1974 of 2020
DATED : 23.07.2021
https://www.mhc.tn.gov.in/judis/
