CHAKKUNNATH GOPI V. THE INCOME TAX OFFICER

WP(C)/4463/2024

AI Insights

The case involves Chakkunnath Gopi, the petitioner, who challenged an order (Exhibit P5) passed by the Commissioner of Income Tax (Appeals), National Faceless Assessment Centre, New Delhi. The order was related to an assessment made under Section 143(3) of the Income Tax Act, 1961, for the assessment year 2016-17. The petitioner had initially opted for a virtual hearing but was denied the opportunity because the request was not made in the prescribed form, leading to the impugned order. The court found that the procedural requirement should not override the substantive right to a personal hearing.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 672535 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-03-2024
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM; P R AJITHKUMAR
• Assessee Lawyers: ANIL NAIR; TELMA RAJU
• Keywords: Personal hearing; Procedural Law; Substantive law; Virtual hearing; Writ of Certiorari
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 WP(C) NO. 4463 OF 2024 PETITIONER: CHAKKUNNATH GOPI AGED 61 YEARS 01 GOPIKAS, VENGANELLUR, CHELAKKARA, THRISSUR DISTRICT,KERALA, INDIA, PIN - 680586 BY ADVS. ANIL D. NAIR TELMA RAJU RESPONDENTS: 1 THE INCOME TAX OFFICER WARD 2 (2), THRISSUR, PIN-680 001, PIN - 680001 2 COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS ASSESSMENT CENTRE (NFAC), NEW DELHI, PIN - 110001 BY ADVS. CHRISTOPHER ABRAHAM P.R.AJITH KUMAR(K/000708/1998) OTHER PRESENT: SRI.CHRISTOPHER ABRAHAM-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4463 OF 2024 2 J U D G M E N T This writ petition has been filed seeking the following reliefs: “i)call for the records leading to issuance of Exhibit P5 order and quash the same by issuing a writ of certiorari: ii)Pending hearing and final disposal of the writ petition, this Hon'ble Court be pleased to grant stay of all recovery proceedings pursuant to Exhibit P1. iii)Issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the interest of justice.” 2. Heard Sri.Anil D. Nair, learned Senior Counsel assisted by Sri.Adithya Unnikrishnan and Sri.Chirstopher Abraham, learned Central Counsel for the Income Tax Department. 3. The present writ petition has been filed impugning Ext.P5 order passed by the 2nd respondent in an appeal instituted by the petitioner against the assessment order dated 27.12.2018 passed under Section 143(3) of the Income Tax Act, 1961. The petitioner was issued notice who opted for the virtual hearing in the appeal by notice dated 19.02.2023. The said notice has been placed on record by the standing counsel on behalf of the respondent by Ext.R1(a). 4. In pursuance to the said notice, the petitioner opted for personal hearing and also intimated the authorised person who will attend the virtual hearing through video conference. However, no link was generated for availing the said opportunity of virtual hearing to the petitioner and he had not subscribed to the personal hearing through video conferencing in the WP(C) NO. 4463 OF 2024 3 prescribed form. 5. It is not in dispute that the petitioner had made the request, also the credential of authorised representative along with his e-mail ID while intimating to the Department, but the virtual hearing has been denied only on the ground that it was not in the prescribed form. 6. The form in which the virtual hearing has to be subscribed is a matter of procedure and not a substantive law. The procedure is always handmade for doing the complete justice between the parties. Procedure cannot take away the substantive right of a person, if the person is otherwise eligible for substantive right of personal hearing. Considering this aspect, the petitioner was not afforded an opportunity of being heard. The present writ petition is allowed and the impugned order is set aside and the matter is remanded back to the 2nd respondent to issue fresh notice to the petitioner for availing the opportunity of personal hearing and this time, the petitioner should not commit any mistake. He should opt for personal hearing in prescribed form. With the afore said direction, the present writ petition stands allowed. Sd/- DINESH KUMAR SINGH JUDGE rp WP(C) NO. 4463 OF 2024 4 APPENDIX OF WP(C) 4463/2024 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ASSESSMENT ORDER DATED 27.12.2018 IN THE YEAR 2016-17 EXHIBIT P2 TRUE COPY OF FORM NO.35 ALONG WITH GROUNDS OF APPEAL EXHIBIT P3 TRUE COPY OF ARGUMENT NOTE FILED AND UPLOADED AS EVIDENCED BY THE ACKNOWLEDGMENT EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT EXHIBIT P4 (A) TRUE COPY OF THE LETTER DATE D 24.10.2023 SENT BY THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P4 (B) TRUE COPY OF THE LETTER OF AUTHORIZATION DATED 23.10.2023. EXHIBIT P5 3. TRUE COPY OF ORDER DATED 11.12.2023 BYTHE 2ND RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R1(A) CIT(A) S FIRST LETTER DATED 19.10.2023 GRANTING OPPERTUNITY FOR VIDEO CONFRENCING EXHIBIT R1 (B) ATTACHMENT DESCRIBING THE PROCEEDURE FOR SEEKING VIDEO CONFRENCING SENT ALONG WITH LETTER DATED 19.10.2023 EXHIBIT R1(C) LETTER OF THE PETITIONER DATED 24.10.2023 RESPONDING TO THE LETTER OF THE CIT(A) DATED 19.10.2023 EXHIBIT R1(D) LETTER DATED 21.11.2023 GRANTING SECOND OPPERTUNITY FOR VIDEO CONFRENCING TO THE PETITIONER "