Ganga Sharan Tambi V. National Faceless Assessment Center, Income Tax Department, Ministry Of Finance

CW/3462/2022

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The case involves Ganga Sharan Tambi, the petitioner, challenging an assessment order dated 17.12.2020 by the National Faceless Assessment Center, Income Tax Department. The petitioner argued that the assessment was conducted without a proper opportunity of hearing, particularly during the COVID-19 pandemic when extensions were generally granted. The court acknowledged the violation of natural justice principles but refrained from interfering directly, suggesting the petitioner pursue the statutory appellate route.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 798365 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 03-03-2022
• Assessment Year: misc
• Other Referred Cases: Anil Tambi Vs. The National E-Assessment Centre (D.B. Civil Writ Petition No. 2390/2022)
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: MAHENDRA GARGIEYA; DEVANG GARGIEYA
• Keywords: Assessment Order; Covid-19; Ex parte order; Natural Justice; Malice in law

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D. B. Civil Writ Petition No. 3462/2022 Ganga Sharan Tambi S/o Shri Ram Kishore Tambi, Aged About 79 Years, R/o B-51, Nehru Nagar, Jaipur-302021, Rajasthan, India. ----Petitioner Versus National Faceless Assessment Center, Income Tax Department, Ministry Of Finance, Room No. 401, 2Nd Floor, E-Ramp, Jawaharlal Nehru Stadium, Delhi-110003 ----Respondent For Petitioner(s) : Mr. Mahendra Gargieya, Advocate with Mr. Devang Gargieya, Advocate HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment / Order 03/03/2022 By this petition an order of assessment dated 17.12.2020 is under challenge. Even though there exists alternative remedy of statutory appeal available to the petitioner, learned counsel for the petitioner would vehemently urge this Court to exercise discretion to entertain and decide the matter on various issues raised in this petition by submitting that present is a case where opportunity of hearing was not afforded to the petitioner, therefore, in view of consistent legal position that where there is violation of principles of natural justice, alternative remedy would not be a bar appropriate orders may be passed. Learned counsel for the petitioner would submit that in the present case while passing order of assessment, notification dated 29.09.2020 which had (2 of 4) [CW-3462/2022] extended the period in view of COVID-19 situation, has also not been kept in view and the assessment authority hastily passed the order. It is next submitted that the petitioner is a senior citizen, it was a COVID-19 time and taking into consideration the scope of unprecedented situation, the authorities, Courts and Tribunals were liberally granting time to various parties for filing proceedings, appeals and applications but later assessing authority acted hurriedly and without granting adequate time to reply to the show cause notice, proceeded to pass an ex-parte order to utter prejudice directing addition of a huge amount of Rs.63,48,994/- by assessing total income at Rs.69,33,700/-. We have given outer consideration to the submission made by learned counsel for the petitioner. It needs no authority for settled legal position that the discretionary jurisdiction of this Court under Article 226 of the Constitution of India, which is extra-ordinary in nature could be exercised notwithstanding existence of alternative remedy. However, self imposed restraints, judicially recognized, include some exceptional grounds when this Court would entertain the matter on merits and examine the legality of the action even if there is an alternative remedy which include absence of jurisdiction, violation of principles of natural justice, malice or such other grounds which require examination and decision of the writ Court. Violation of fundamental rights have always been viewed as one of the ground for the writ Courts to entertain the cases despite existence of alternative remedy. Present is a case arising out of an order of assessment. Undeniably a notice was given to the petitioner on 31.10.2020, (3 of 4) [CW-3462/2022] wherein, he was required to file reply to the show cause notice on 16.11.2020. Therefore, present is not a case where the allegation is of complete absence of opportunity of hearing. Rather the grievance is that proper opportunity of hearing was not afforded. Issue of jurisdiction as such is not under challenge on the ground that the authority, which has passed the order, did not have the jurisdiction under the law to pass the order of assessment. There are many grounds which have been raised in this petition which include the legality and validity of the assessment proceedings with reference to certain statutory schemes. One additional ground has been raised in this petition that the order also suffers from malice in law as the authority has acted in a manner, which was not at all warranted in the case situation. As far as allegation of order being infected with malice in law, this again is an issue for consideration which would depend upon as to whether the time granted to the petitioner for filing the reply in the circumstances was adequate or not. It being not a case of allegation of malice, in fact, against the assessing authority, we would not be inclined to interfere with the order on that ground. Learned counsel for the petitioner has relied upon an order dated 23.02.2022 passed in Anil Tambi Vs. The National E- Assessment Centre (D.B. Civil Writ Petition No. 2390/2022) wherein, this Court has entertained the petition on the ground that effective opportunity of hearing was not granted. We have gone through that order and find that in peculiar circumstances that department conveyed the date and time of hearing on 10.06.2021 at 3.14 p.m., which was later on rescheduled to 2.54 p.m. on 05.08.2021, coupled with the (4 of 4) [CW-3462/2022] allegation that there was a connectivity problem, this Court on the facts of that case appears to have prima facie inclined to entertain the petition. Be that as it may, in the absence of it being a case of violation of any fundamental right as such and that the grievance is that adequate opportunity of hearing was not afforded and time for filing reply to show cause notice was not extended and further taking into consideration that the order under challenge itself was passed on 17.12.2020, in our considered opinion, the petitioner should approach the statutory appellate authority raising all the grounds which have been raised in this petition including such other grounds as may be available to him under the law. Considering that the petitioner appears to be a senior citizen, we direct the appellate authority that in case the appeal is filed within a period of two months from today, the appellate authority shall examine all the grounds and decide the appeal within an outer limit of not more than two months from the date of presentation of the appeal. Writ petition is accordingly disposed off. (ANOOP KUMAR DHAND),J (MANINDRA MOHAN SHRIVASTAVA),J Mohita /1 "