CHRISTIAN AGENCY FOR RURAL DEVELOPMENT (CARD) V. THE INCOME TAX OFFICER,

WP(C)/15112/2022

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The case involves the Christian Agency for Rural Development (CARD), represented by its director, Rev. Abraham P Varkey, challenging the orders and notices issued by the Income Tax Department under Sections 148 and 148A of the Income Tax Act. The petitioner contended that they were not given a proper opportunity to respond to the show cause notice (Ext.P5), which required a reply on the same day it was received. The department argued that an electronic notice was sent earlier, providing sufficient time to respond. The court found that the petitioner did not receive the electronic notice and thus set aside the subsequent orders, allowing the petitioner additional time to respond.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 760325 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-06-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Applicant
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: RAMESH JOHN
• Keywords: Electronic notice; Exemption; Income Tax; Re-assessment; Show cause notice
• Section: 148; 10(23C); 148A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 21ST DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 WP(C) NO. 15112 OF 2022 PETITIONER/S: CHRISTIAN AGENCY FOR RURAL DEVELOPMENT (CARD) MARTHOMA SABHA OFFICE, THIRUVALLA, PATHANAMTHITTA DIST., REPRESENTED BY ITS DIRECTOR, REV. ABRAHAM P VARKEY. BY ADV RAMESH CHERIAN JOHN RESPONDENT/S: 1 THE INCOME TAX OFFICER, OFFICE OF THE INCOME TAX OFFICER, EXEMPTION WARD, ALAPPUZHA 688 001. 2 THE COMMISSIONER OF INCOME TAX, OFFICE OF THE COMMISSIONER OF INCOME TAX, AYAKAR BHAVAN, ALAPPUZHA 688 001. OTHER PRESENT: SRI. CHRISTOPHER ABRAHAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).15112/22 2 JUDGMENT Petitioner has approached this Court impugning Ext. P9 order and the consequential Ext.P10 notice principally on the ground that the petitioner did not receive any proper opportunity to respond to Ext.P5 show cause notice. 2. The learned counsel for the petitioner would submit that the petitioner was issued with Ext.P5 notice which was received by the petitioner by registered post on 30.03.2022 at about 12:30 p.m. It is submitted that going by Ext.P5, the petitioner was required to submit a reply to Ext.P5 on the same day itself. It is submitted that the provision namely Section 148A of the Income Tax Act requires that a minimum seven days' notice be given to enable an assessee to submit his reply. It is submitted that Ext.P9 order was issued on 01.04.2022 and consequently Ext.P10 notice under Section 148 of the Income Tax Act has been issued to the petitioner. 3. The learned Standing Counsel appearing for the department would submit that the normal mode of sending notice under section 148A is through electronic mode and as per the instructions received by him, a notice through electronic mode was issued to the petitioner on 23.03.2022. It is submitted that taking the date 23.03.2022 into consideration, the petitioner has been clearly given seven days time to respond to the notice. It is submitted that the petitioner is really not prejudiced by Ext.P9 order and it is open to him to take all contentions including the claim that it is exempted from taxation on account of the provisions contained in Section 10(23C) of the Income Tax Act before the W.P(C).15112/22 3 authority when the proposed re-assessment proceedings are being completed. It is submitted that, at any rate, the petitioner has no cause of action to approach this court under Article 226 of the Constitution of India, at this stage. 4. The learned counsel appearing for the petitioner, in reply, submits that apart from the notice received by the petitioner through registered post, no notice was served on the petitioner by electronic means. 5. Having heard the learned counsel on both sides and taking note of the contention of the petitioner that the petitioner did not receive any notice by electronic means and the only notice received was through registered post which required the petitioner to submit a reply on the day on which the letter was received by the petitioner, I am of the view that the petitioner can be given an opportunity to file his response to Ext.P5 show cause notice. In order to enable re- consideration of the matter, Exts.P9 and P10 will stand set side. The petitioner will file a response to Ext.P5 show cause notice within ten days from the date on which the 1st respondent permits the petitioner to upload a reply. Fresh orders shall be passed after adjudicating Ext.P5 show cause notice and after affording an opportunity of hearing to the petitioner within one month from the date on which the petitioner submits a reply to Ext.P5 show cause notice as above. Writ petition is disposed of in the above terms. Sd/- GOPINATH P. JUDGE okb/22.6.22 //True copy// PS to Judge W.P(C).15112/22 4 APPENDIX OF WP(C) 15112/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORIGINAL EXEMPTION NOTIFICATION DATED 29.01.1980. Exhibit P1(a) TYPED COPY OF THE ORIGINAL EXEMPTION NOTIFICATION DATED 29.01.1980. Exhibit P2 TRUE COPY OF THE ORDER OF APPROVAL DATED 24.09.2021 EXTENDING THE EXEMPTION GRANTED U/S. 10(23C) IN FORM 10AC FROM ASSESSMENT YEAR 2022-23 TO 2026-27. Exhibit P3 TRUE COPY OF THE ACKNOWLEDGEMENT OF FILING RETURN BY THE PARENT ORIGINATION NAMELY MALANKARA MARTHOMA SYRIAN CHURCH OF MALABAR FOR THE RELEVANT AY 2018-19. Exhibit P4 TRUE COPY OF THE AUDIT REPORT OF THE PETITIONER UNDER SECTION 10 (23 C) IN FROM NO. 10BB ALONG WITH THE ANNEXURE SHOWING STATEMENT OF PARTICULARS. Exhibit P4(a) TRUE COPY OF THE RELEVANT PAGE OF STATEMENT SHOWING CONSOLIDATED FIGURES WHEREIN THE PETITIONER IS ALSO INCLUDED IN THE IT RETURNS OF THE PARENT ORGANIZATION FOR THE RELEVANT AY 2018-19. Exhibit P5 TRUE COPY OF THE NOTICE DATED 23.03.2022 ISSUED UNDER SECTION 148 A (B) OF THE ACT. Exhibit P6 TRUE COPY OF THE TRACK CONSIGNMENT OBTAINED FROM THE WEBSITE OF THE POSTAL DEPARTMENT CONFIRMING THE DELIVERY OF EXT. P5 NOTICE ON THE PETITIONER DATED 30.03.2022. Exhibit P7 TRUE COPY OF THE REPLY DATED 04.04.2022 FILED BY THE PETITIONER DISCLOSING ALL THE DETAILS. Exhibit P8 TRUE COPY OF THE E- PROCEEDINGS RESPONSE ACKNOWLEDGMENT DATED 04.04.2022 TO EXT. P7. W.P(C).15112/22 5 Exhibit P9 TRUE COPY OF THE ORDER PASSED UNDER SEC. 148A (D) OF THE ACT DATED 01.04.2022. Exhibit P10 TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT DATED 1.4.2022 WHICH IS ON THE SAME DATE OF PASSING EXT. P9 ORDER. "