AVESH SHEKH V. UNION OF INDIA

WA/143/2023

AI Insights

The case involves Avesh Shekh, the appellant, who contested an assessment order issued by the Income Tax Department. The appellant argued that his request for an adjournment due to his father's terminal illness was not considered, leading to a violation of natural justice. Initially, the Single Bench dismissed the writ petition, suggesting the appellant seek remedy under Section 246-A before the CIT appeal. However, the appellant's counsel argued that the adjournment request was crucial and its non-consideration led to an unfair assessment. The respondents contended that the adjournment request was submitted late, thus not considered. The High Court, referencing a similar case, emphasized the need for humane consideration in such requests, especially in faceless assessments, and found merit in the appellant's argument.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 684888 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 24-03-2023
• Assessment Year: misc
• Other Referred Cases: Dangee Dums Ltd. Vs. National Faceless Assessment Centre, Govt. of India
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ANUMOL SHARMA; AMIT CHOUDHARY; AJAY KUMRANI
• Assessee Lawyers: APRUV GOYAL
• Keywords: Adjournment request; Faceless assessment; Income Tax Return; Natural Justice
• Section: 148; 246 A

Judgement Text

"1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Appeal No. 143 of 2023 • Avesh Shekh S/o Kadar Shekh Aged About 35 Years R/o H. No. 254 Ward No. 42, Nalapara, Nandai, Rajnandgaon, 491441, Chhattisgarh. ---- Appellant Versus 1. Union Of India Through Its Secretary, Ministry Of Finance, (Department Of Revenue), No. 137, North Block, New Delhi- 110001 2. National Faceless Assessment Centre Delhi Through Additional/joint/deputy/assistant/commissioner Of Income Tax/ Income Tax Officer, Income Tax Department, North Block, New Delhi- 110001. 3. Officer Ward 1 Rajnandgaon Office Of Income Tax, Raipur Naka, Rajnandgaon, District : Rajnandgaon, Chhattisgarh ---- Respondents For Appellant : Shri Apruv Goyal, Advocate For Respondent No.1/UOI : Ms. Anumol Sharma, Advocate on behalf of Shri RK Mishra, Asst. Solicitor General For Respondents 2 & 3 :Shri Amit Choudhary and Shri Ajay Kumrani, Advocates Hon'ble Shri Goutam Bhaduri, Acting Chief Justice Hon'ble Shri N.K. Chandravanshi, Judge Order On Board Per Goutam Bhaduri, Ag.Chief Justice 24.3.2023 1. Heard. 2. The present appeal is against the order dated 16.3.2023 passed in WP(T) No.66 of 2023. The learned Single Bench dismissed the writ petition on the ground of alternative available remedy to prefer an appeal under Section 246-A before the CIT appeal. 3. Learned counsel for the appellant would submit that 2 initially notice under Section 148 of the Income Tax Act, 1961 was issued on 27.3.2022, to which income tax return was filed by the petitioner on 19.8.2022. Having not satisfied with the assessment, different notices were issued and lastly show- cause notice dated 06.01.2023 was issued to the appellant. The appellant filed reply on 13.01.2023. Again show cause notice was issued on 20.01.2023 by the department to the appellant. By such notice reply was sought to be filed till 25.01.2023 by 16.15 hours (4.15 pm). The appellant filed adjournment request on the ground that father of the appellant is terminally ill and is admitted to the hospital from 17.01.2023 and further 15 days time was sought for. The reason assigned was that he being the only son, some time may be given to look after him thereby adjournment was sought. The contention of the appellant is that the same was not heard and in the assessment order passed on 15.02.2023, no reference was made about said application for adjournment. It is submitted that said application for adjournment was not adjudicated which resulted into defeat of rules of natural justice. Consequently, a writ petition would lie and no prejudice would be caused to the department if the appellant is allowed to be heard and fresh orders are passed. 4. Per contra, learned counsel for the respondents 2 & 3 would submit that order of the learned Single Bench is well merited. He would submit that reply to the show cause notice was to be filed by 4.55 pm on 25.01.2023 and the appellant has filed his adjournment application on 25.01.2023 at 18.26 hours 3 i.e. 6.26 pm. By the time since the portal was closed no hearing would have been given. 5. Prima facie the short question involved is whether the appellant’s request for adjournment before the assessing officer was considered or not. The second show cause which was issued on 20.01.2023, the time was shown that response was required to be filed through web portal filing account by 4.15 pm on 25.01.2023. The application shows that the application for adjournment on 25.01.2023 was filed on the ground that father of the appellant is terminally ill and is hospitalized since 17.01.2023 and the appellant sought for further time of 15 days to file reply. Certain medical documents are also placed herein on record. 6. Subsequent thereto the order of the assessment was passed on 15.02.2023 and the assessment order purports at para 7 that the assessee has neither submitted any reply nor filed any adjournment letter. As against this, document of adjournment request, the portal shows that it was successfully submitted on 25.01.2023 though late at about 6.25 pm. 7. Therefore, under what circumstances, the adjournment letter was not placed before the assessing officer before passing the order on 15.02.2023 after about 20 days is not clear. When an assessment is made which is faceless, due care is requited to be taken to consider those request. Recently in the matter of Dangee Dums Ltd. Vs. National Faceless Assessment Centre, Govt. of India reported in (2023) 148 taxmann.com 22 4 (Gujarat), the Hon’ble Gujarat High Court observed at para 11 which reads as under: “11. XXXXX XXXXX XXXXX Once there is a request made to the respondent authority by any assessee for adjournment, it is expected always and a must that the same is responded to, more so, when there is a faceless assessment. The reply that needs to be filed, can be done only when the portal opens for a particular time period and not without that. The petitioner contended that his adjournment application requesting for time for at least 20 days was not rejected nor granted and he was rightly under a bona fide belief that fresh notice for fixing date of hearing shall be issued. Insistence on the part of the respondent that the petitioner also could have been vigilant enough to make a request once against if he had not heard in 20 day’s time is surely worth noting and it is also noteworthy further that only after assessment order was passed after 50 days that he has woken up from hi slumber. Without endorsing to that conduct of the petitioner, we need to categorically hold that, that hardly is a ground to deny an opportunity to the petitioner who was all throughout clueless on the next date of hearing.” 8. After going through the documents filed in the writ petition and in the writ appeal, we are of the view that the reason for adjournment for ailment of the father of the appellant, which is supported by certain medical documents prima facie appears to be genuine and it is obvious when your near and dear are hospitalized, in such case request of the like nature is natural and is expected. While deciding the case on 15.02.2023, the adjournment letter which appeared to be successfully received 5 at the portal of the respondent should have been given a consideration along the humanitarian touch for the reasons assigned therein. Further more, by grant of opportunity no prejudice would be caused to the department. 9. Therefore, in view of such observation, we are of the view that assessment order dated 15.02.2023 is quashed for not adhering to the rules of natural justice. The appellant shall be given a fresh date of hearing so that the appellant may file a response and thereafter after hearing the parties fresh orders may be passed. Since order dated 15.02.2023 is quashed, consequence of it will follow. The order of the learned Single Judge is set aside to the extent above. 10. The appeal is accordingly allowed. Sd/- Sd/- (Goutam Bhaduri) (NK Chandravanshi) Acting Chief Justice Judge Bini "