DR. SHEELA VIRGINIA RODRIGUES V. THE PRINCIPAL COMMISSIONER OF INCOME TAX

WP(C)/29801/2021

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Dr. Sheela Virginia Rodrigues, the petitioner, challenged the rejection of her revision application under Section 264 of the Income Tax Act, 1961, concerning an assessment for the year 2011-2012. The rejection was based on the delay in filing the revision application, which was deemed 'highly belated' by the first respondent. The petitioner argued that she was unaware of the intimation dated 19.02.2014, which was allegedly sent to her email, a practice not common at the time. The court examined the communication practices of 2014 and found that the rejection of the revision application was overly technical and prejudicial to the petitioner, leading to the setting aside of the impugned order and a directive for a fresh consideration on merits.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 686971 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 25-01-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: S RAJ; SUJA T; ARJUN RAJ
• Keywords: Assessment Year 2011-2012; Delay; Electronic communication; Income Tax; Revision petition
• Section: 143(1); 264; 226(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943 WP(C) NO. 29801 OF 2021 PETITIONER : DR. SHEELA VIRGINIA RODRIGUES AGED 58 YEARS, VELOOR HOUSE, ALUMKADAVU P.O., KARUNAGAPPALLY, KOLLAM - 690 518 BY ADVS. S.ARUN RAJ SUJA C.T. ARJUN S.RAJ RESPONDENTS : 1 THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, FIRST FLOOR, KAWDIAR P.O., THIRUVANANTHAPURAM-695 003. 2 INCOME TAX OFFICER, WARD-3, OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOLLAM RANGE, AAYAKAR BHAVAN, NR KARBALA JUNCTION, KOLLAM-691 001 BY SRI.CHRISTOPHER ABRAHAM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29801 OF 2021 2 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No.29801 of 2021 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 25th day of January, 2022 JUDGMENT Petitioner is a doctor by profession and is aggrieved by the proceedings under the Income Tax Act, 1961 (for short, 'the Act') for the assessment year 2011-2012. She challenges Ext.P10 order by which her application for revision under Section 264 of the Act was rejected merely on the ground of delay. 2. Petitioner alleges that, when her bank accounts were attached on 26.03.2019 by a notice issued under Section 226(3) of the Act. On enquiry, she realized that a demand of Rs.7,95,840/- was intimated under Section 143(1), allegedly issued on 19.02.2014. Petitioner contended that she had never received the intimation of 2014 and that on noticing the contents of the intimation, she realised that there was a mistake in the return filed. Thereafter a revision petition was filed under Section 264 of the Act on 24.09.2019. However, by the impugned order dated 08.03.2021, the revision petition was rejected on the ground that the application filed under Section 264 was highly belated and further that the intimation was sent to the petitioner on 19.02.2014 to the mail id of the assessee and hence there was no sufficient cause for not invoking WP(C) NO. 29801 OF 2021 3 the remedy under Section 264 of the Act, within time. 3. The learned Counsel for the Petitioner Sri.Arun Raj S. vehemently contended that petitioner was completely in the dark about the intimation dated 19.02.2014. According to the learned Counsel, apart from the absence of any material to show that such an intimation was sent to the mail id of the petitioner, the rules for electronic communications came into effect only in 2015 and hence the response of the department that the intimation was sent in 2014 through mail id cannot be accepted. Even otherwise, according to the learned counsel for the petitioner, in 2014, sending communications through mail was not a practice in vogue and that, considering the nature of the claim raised in the revision, the same ought to have been considered on merits so that the assessee was not put to prejudice. 4. The learned Standing Counsel for the respondents Sri.Christopher Abraham, on the other hand justified the order impugned and stated that in the light of the clear delay of more than 5 years in preferring the revision petition under Section 264 of the Act, the first respondent had no other alternative, other than to dismiss the same. 5. On a consideration of the rival arguments, it is noticed that petitioner's specific contention was that the intimation issued under Section 143(1) came to the attention of the petitioner only on 26.03.2019. A perusal of Ext.P4 letter issued on 17.04.2019 shows that immediately on coming to know about the attachment of the bank account, petitioner had WP(C) NO. 29801 OF 2021 4 requested the first respondent to issue a copy of the intimation under Section 143(1). In response to the said request, the first respondent issued the intimation along with the covering letter dated 15.05.2019, pursuant to which Ext.P9 revision petition was filed under Section 264 of the Act. 6. It is true that the respondents have not referred to any specific mail nor have they produced the details of the mail sent to the petitioner as alleged to have been sent on 19.02.2014. It is also true that the practice of sending communications by mail was not a prevalent practice in the year 2014 and normally the assessee would have expected communications to be served by post rather than mail. 7. The tendency to check the emails with all its seriousness, that too, those from the income tax department was not a practice in vogue in those days. Though technologically, we have advanced leaps and bounds, still, while appreciating the circumstances of this case, this Court cannot ignore the realities of the communication system and the human conduct that existed 8 years ago. Thus even if it is assumed that petitioner had received the email communication, in the absence of the said communication being the only mode of service of notice prescribed by law, an assessee cannot be blamed if they assumed that the e-mail communication would be followed by a written communication. To deny the opportunity of the petitioner to contest her case due to an e-mail communication send in 2014, would be to say the least a violation of her WP(C) NO. 29801 OF 2021 5 rights. In the ultimate analysis, reliance upon such a procedure is too hypertechnical and causes prejudice to the petitioner. 8. In view of the above appreciation, I find that the first respondent was too technical while rejecting the application of the petitioner filed under Section 264 of the Act. In this context, the provisions of Section 264(3) cannot be ignored. The wordings used in Section 264(3) conveys that the application must be made within one year from the date on which the order was communicated to the assessee or the date on which the assessee came to know of, whichever is earlier. 9. Since there is nothing to disbelieve the version of the assessee that the order was communicated only in 2019 and she came to know about the order only after March, 2019, I am of the view that Ext.P10 order is legally unacceptable and is liable to be set aside. Accordingly I hereby hold that Ext.P9 was filed within the time as contemplated under Section 264(3) of the Act. Accordingly, Ext.P10 shall stand set aside and the first respondent is directed to consider the case of the petitioner afresh and pass appropriate orders on Ext.P9 on merits. Sd/- BECHU KURIAN THOMAS, JUDGE RKM WP(C) NO. 29801 OF 2021 6 APPENDIX OF WP(C) 29801/2021 PETITIONER'S EXHIBITS : Exhibit P1 TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER FOR THE AY 2011-12 Exhibit P2 TRUE COPY OF THE FORM 26 AS STATEMENT DATED 31.3.2013 Exhibit P3 TRUE COPY OF THE NOTICE DATED 26.3.2019 U/S 226(30 ISSUED BY THE 2ND RESPONDENT FOR THE AY 2011-12 Exhibit P4 TRUE COPY OF THE LETTER DATED 17.4.2019 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P5 TRUE COPY OF THE LETTER DATED 15.5.2019 SENT TO THE PETITIONER BY THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE INTIMATION DATED 19.2.2014 PASSED U/S 143(10 OF THE ACT BY THE 2ND RESPONDENT Exhibit P7 TRUE COPY OF THE FORM 16 ISSUED BY THE CONCERNED DEPARTMENT OF THE EMPLOYER, WHICH IS RELEVANT TO THE AY 2011-12 Exhibit P8 TRUE COPY OF THE REVISED FORM 26 AS STATEMENT PERTAINING TO THE AY 2011-12 Exhibit P9 TRUE COPY OF THE REVISION PETITION UNDER SECTION 264 OF THE INCOME TAX SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P10 TRUE COPY OF THE ORDER DATED 8.3.2021 PASSED UNDER SECTION 264 OF THE ACT BY THE 1ST RESPONDENT Exhibit P11 TRUE COPY OF THE NOTIFICATION NO 2/2016 DATED 3.2.2016 ISSUED BY THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA "