Basheer V. Union of India and Central Board of Direct Taxes and National Faceless Assessment Centre (NAFAC) and Additional/Joint/Deputy/Assistant Commissioner of Income Tax/Income Tax Officer, NAFAC

WP(C)/13240/2022

AI Insights

The case involves a writ petition filed by Basheer, an assessee under the Income Tax Act, 1961, challenging the final assessment order issued by the National Faceless Assessment Centre for the assessment year 2017-18. The petitioner argued that he was not given adequate opportunity to respond to the notices and the draft assessment order due to his Chartered Accountant's inaction and his own limited educational background. The respondent, Department of Revenue, contended that multiple opportunities were provided, which the petitioner failed to utilize. The court, while acknowledging the procedural compliance by the Department, granted relief to the petitioner by allowing a fresh assessment with an opportunity to be heard, citing the principles of natural justice.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 817628 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 16-11-2022
• Assessment Year: misc
• Other Referred Cases: Ram Chander V. Union of India and Others [1986 KHC 806]
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: O NAMBIAR; GEEN MATHEW
• Keywords: Assessment Order; Faceless assessment; Income Tax; Natural Justice; Opportunity to be heard
• Section: 147

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 16TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 WP(C) NO. 13240 OF 2022 PETITIONER/S: BASHEER, AGED 50 YEARS PUNNAVILA HOUSE, NAVAIKULAM POST-695 605, KUDAVOOR VILLAGE, VARKALA TALUK, KALLAMBALAM, THIRUVANANTHAPURAM DISTRICT. BY ADVS. O.RAMACHANDRAN NAMBIAR GEEN T.MATHEW RESPONDENT/S: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI G.P.O., POST-110 001, NEW DELHI DISTRICT, DELHI STATE. 2 CENTRAL BOARD OF DIRECT TAXES, REPRESENTED BY ITS CHAIRPERSON DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, 6TH FLOOR, MAYUR BHAWAN, CONNAUGHT CIRCUS, NEW DELHI G.P.O. POST- 110 001, NEW DELHI DISTRICT, DELHI STATE. 3 THE NATIONAL FACELESS ASSESSMENT CENTRE (NAFAC), REPRESENTED BY THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (NAFAC), DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, 6TH FLOOR, MAYUR BHAWAN, CONNAUGHT CIRCLE, NEW DELHI GOP POST-110 001, NEW DELHI DISTRICT, DELHI STAE. 4 ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIOENR OF INCOME TAX/INCOME TAX OFFICER, THE NATIONAL FACELESS ASSESSMENT CENTRE (NAFAC), DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI G.P.O. POST-110 001, NEW DELHI DISTRICT, DELHI STATE. ADV. CHRISTOPHER ABRAHAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13240 OF 2022 2 JUDGMENT Petitioner is an assessee under the Income Tax Act, 1961. He suffered Ext.P6 order of assessment under the provisions of the said Act for the assessment year 2017-18. It is the case of the petitioner that on receipt of a notice from the National Faceless Assessment Centre, though the petitioner had forwarded the notice to his Chartered Accountant, he failed to take any action in the matter. It is submitted that the petitioner has studied only up to 10th Standard and he was not in a position to respond to the notice issued by the Income Tax Department. It is also submitted that on receipt of Ext.P4 draft assessment order, the petitioner had approached another Chartered Accountant, who requested for some time for personal hearing etc. It is submitted that the officer proceeded to complete the assessment by Ext.P6, without giving the opportunities sought in Ext.P5, on the ground that the assessment proceedings were getting time barred. It is submitted that the petitioner only requests for one more opportunity to present his case before the Assessing Authority. 2. Learned Standing Counsel appearing for the WP(C) NO. 13240 OF 2022 3 respondent-Department refers to the statement filed before this Court and submits that several opportunities were given to the petitioner as is evident form the averments contained in the statement. It is submitted that the petitioner failed to avail any of the opportunities extended to him and he cannot therefore complain that the assessment was completed, without affording to him a proper opportunity of being heard. It is submitted that the remedy of the petitioner against the order of assessment is to file an appeal before the Appellate Authority and there is no reason for him to seek reliefs by filing a writ petition under Article 226 of the Constitution of India. 3. Learned counsel appearing for the petitioner, in reply, submits that the loss of opportunities at the original stage cannot be cured by grant of opportunity at the appellate stage. It is submitted that this is settled by the decision of the Hon’ble Supreme Court in Ram Chander V. Union of India and Others [1986 KHC 806] that the failure to grant opportunity at the original stage cannot be substituted by the grant of any opportunity at the appellate stage. 4. Having regard to the facts and circumstances of the case and after hearing the counsel as above, I am of the opinion WP(C) NO. 13240 OF 2022 4 that there is considerable merit in the contention taken by the learned counsel appearing for the respondent-Department that the petitioner cannot really complain of violation of principles of natural justice since every possible opportunity and all notices required to be issued to the petitioner under the provisions of the Income Tax Act 1961, have been issued to the petitioner. The failure of the Chartered Accountant of the petitioner to respond to those notices cannot really be a ground for setting aside the orders of assessment. However, taking into consideration the fact that the petitioner is a person, who has studied only upto 10th standard and purely as a matter of indulgence, I am of the opinion that the petitioner can be granted an opportunity to appear before the assessing authority and to state his case. Accordingly, the writ petition is allowed. Ext.P6 is quashed. The assessment for the assessment year 2017-18 shall be completed afresh by the National Faceless Assessment Centre, after affording to the petitioner an opportunity of being heard. The petitioner shall not seek any adjournments and shall respond to any notices issued by the National Faceless Assessment Centre, without delay. The fresh assessment as WP(C) NO. 13240 OF 2022 5 above shall be completed without undue delay. The writ petition is allowed as above. sd/- GOPINATH P. JUDGE ajt WP(C) NO. 13240 OF 2022 6 APPENDIX OF WP(C) 13240/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED 28.01.2022 AND THE EMAIL DATED 28.01.2022. Exhibit P2 TRUE COPY OF THE NOTICE DATED 02.02.2022 AND THE EMAIL DATED 03.02.2022. Exhibit P3 TRUE COPY OF THE SHOW CAUSE DATED 23.03.2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P4 TRUE COPY OF THE DRAFT ASSESSMENT ORDER DATED 23.03.2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P5 TRUE COPY OF THE REPLY DATED 26.,03.2022 ISSUED TO THE 4TH RESPONDENT. Exhibit P6 TRUE COPY OF THE FINAL ASSESSMENT ORDER ITBA/AST/S/147/2021-22/1042055727(1) DATED 30.03.2022. Exhibit P6 A TRUE COPY OF THE COMPUTATION SHEET ITBA/AST/S/213/2021-22/1042055815(1) DATED 30.03.2022. Exhibit P7 TRUE COPY OF THE NOTICE OF DEMAND ITBA/AST/S/156/2021-22/1042055819(1) DATED 30.03.2022. Exhibit P7 A TRUE COPY OF THE NOTICE FOR PENALTY ITBA/PNL/S/271F/2021-22/1042055998(1) DATED 30.03.2022. "