MOHAMMED ALI AKRAM KHAN V. DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), CUTTACK

WP(C)/32583/2023

AI Insights

The case involves Mohammed Ali Akram Khan, the petitioner, who challenged the assessment orders issued against him by the Deputy Commissioner of Income Tax, Circle 1(1), Cuttack. The petitioner argued that he was unable to participate in the assessment proceedings due to his judicial custody and that his wife had informed the authorities about his inability to respond to notices. Despite this, the authorities proceeded with the assessment, leading to a final order which the petitioner contested in the High Court. The court found that the petitioner was not given a fair opportunity to be heard, which is a fundamental right under the principles of natural justice.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 747398 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 05-01-2024
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: TUSHAR SATAPATHY
• Assessee Lawyers: SASWAT ACHARYA
• Keywords: Assessment; Income Tax; Judicial Custody; Opportunity of Hearing; Writ petition
• Section: 147; 148; 144B; 148A(d)

Judgement Text

" Page 1 of 4 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 32583 of 2023 Mohammed Ali Akram Khan …. Petitioner Mr. Saswat Kumar Acharya, Advocate -versus- Deputy Commissioner of Income Tax, Circle 1(1), Cuttack and Another …. Opposite Parties Mr. Tushar Kanti Satapathy, Senior Standing Counsel CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN Order No. ORDER 05.01.2024 04. 1. Heard Mr. Saswat Kumar Acharya, learned counsel appearing for the petitioner and Mr. Tusharkanti Satapathy, learned Senior Standing Counsel for the Opposite Party Nos.1 and 2-Revenue. 2. The petitioner has filed this writ petition seeking to quash the order dated 30.07.2022 passed by opposite party No.1 under Section 148A(d) of the Income Tax Act, 1961 vide Annexure-5; the notice under Section 148 dated 30.07.2022 under Annexure-6 and consequential proceedings whereof assessment framed vide order dated 26.04.2023 under Annexure-14. 3. Mr. S.K. Acharya, learned counsel appearing for the petitioner contended that the petitioner was issued with a notice to show cause Page 2 of 4 under Section 148 of the Income Tax Act on 30.07.2022 vide Annexure-6. However, an intimation was issued by the National Faceless Assessment Center on 02.11.2022 that assessment would be completed under Section 144B of the IT Act. As the petitioner was arrested and under judicial custody even on the dates fixed in subsequent notices, he did not get the opportunity to participate in the assessment proceedings. It is contended that the wife of the petitioner also approached the authority vide Annexure-12 stating therein that the assessee was in custody and, therefore, she prayed before the authority to keep in abeyance the proceeding till the assessee is released on bail. But the same was not paid attention. Thereafter, the final assessment order was passed on 26.04.2023 under Annexure-14 under Section 147 read with Section 144B of the Income Tax Act, pursuant to the notice issued on 25.01.2023. He also brings to the notice of the Court i.e. Page 62 of the writ petition, wherein in the column ‘response of the assessee received /not received’ it has been mentioned that ‘not received’. It is contended that when the wife of the petitioner requested the authority to bind hands to proceed with the show cause notice/proceeding till the assessee is released on bail, without responding to the same, the authority could not have taken the plea that they have not received the response of the assessee, which is contrary to the documents available on record. It is further contended that the assessment so made, without giving opportunity of hearing to the petitioner, cannot be sustained in the eye of law. It Page 3 of 4 is further contended that even though provision for appeal has been prescribed under the Income Tax Act, no useful purpose would be served in the event the petitioner prefers an appeal because of the fact that when the petitioner has not been given opportunity of participation in the proceeding and hearing, the appellate authority cannot set aside the order and remit the matter for rehearing of the same. Therefore, the petitioner has approached this Court by filing the present writ petition. 4. Mr. T.K. Satapathy, learned Senior Standing Counsel for the opposite party Nos.1 and 2 -Revenue contended that on the basis of the counter affidavit filed on behalf of the Opposite Parties, since the alternative remedy is available to the petitioner, he may avail the same. 5. Mr. S.K. Acharya, learned counsel appearing for the petitioner while pleading for extension of a chance to participate in the assessment proceeding, contended that in view of the order already passed by this Court on 30.10.2023 this case falls within a very narrow compass to the extent that the petitioner should be given opportunity of hearing by the assessing authority so that he can place the matter as he remained absent when such notice was issued. This Court had called upon the Senior Standing Counsel for the Revenue to obtain instruction to address limited grievance made by the petitioner and whether he should be given opportunity of hearing. It is contended that since the petitioner was in custody, he Page 4 of 4 could not be given opportunity of hearing. Therefore, in order to have an opportunity of fair trial, the order of assessment passed by the authority is hereby quashed and the matter is remitted to the assessing authority for just and proper adjudication of the case, permitting the petitioner to place all the materials and raise contentions which have been raised in the present petition. 6. Accordingly, the writ petition stands disposed of. An urgent certified copy of this order be issued as per rules. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE (M.S. RAMAN) JUDGE SK Jena/Secy. Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 09-Jan-2024 15:24:46 Signature Not Verified "