O.G.SUNIL V. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2

WP(C)/5364/2013

AI Insights

The case involves a writ petition filed by O.G. Sunil challenging the order passed by the Commissioner of Income Tax, Appeals, which was finalized without an effective hearing. The petitioners, husband and wife, had previously faced coercive proceedings and sought judicial intervention to expedite their appeal process. Despite being granted extensions and notices for hearings, the final order was passed in their absence, leading to this writ petition. The court found that the petitioners were not given a fair opportunity to present their case, as they were not notified of the final hearing date, and thus set aside the impugned order.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 755852 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 06-03-2013
• Assessment Year: misc
• Other Referred Cases: WPC 28880/2011
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P K R MENON; JOSE JOSEPH
• Assessee Lawyers: ANIL NAIR; PREM J R; NIVEDITA KAMATH
• Keywords: Appeal; Assessment; Coercive Proceedings; Effective opportunity of hearing; Income Tax
• Section: 143; 153(A)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934 WP(C).No. 5364 of 2013 (U) --------------------------------------- PETITIONER(S): ---------------------- O.G.SUNIL , 13B, LINK HORIZON MARINE DRIVE, ERNAKULAM, KOZHI 11 BY ADVS.SRI.ANIL D. NAIR SRI.PREM NAVAZ J.R. SMT.NIVEDITA A.KAMATH RESPONDENT(S): -------------------------- 1. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, ERNAKULAM. 2. THE COMMISSIONER OF INCOME TAX, (APPEALS) III, KOCHI- 682 015. 3. TAX RECOVERY OFFICER RANGE-1 C.R BUILDINGS, I.S PRESS ROAD KOCHI 18 R1 BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-03-2013, ALONG WITH WPC. NO.5395 OF 2013 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.5364/2013 APPENDIX PETITIONER(S) EXHIBITS EXT.P1:- COPY OF THE JUDGMENT IN WPC 28880/2011 DATED 31-10-2011. EXT.P2:- COPY OF THE INTERIM ORDER DATED 2-2-2012 IN WPC 28880/2011. EXT.P2(A):- COPY OF THE INTERIM ORDER DATED 20-07-2012 IN WPC 28880/2011. EXT.P3:- COPY OF THE ORDER DATED 17-01-2013 PASSED BY THE SECOND RESPONDENT. EXT.P4:- COPY OF THE NOTICE DATED 3-1-2013 BY THE SECOND RESPONDENT. EXT.P5:- COPY OF THE ADJOURNMENT LETTER DATED 7-1-2013 BY THE PETITIONER. RESPONDENTS' EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE tss P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c) Nos.5364 & 5395 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2013 JUDGMENT The issue involved in both these cases is closely inter-linked; the first case having been filed by the husband, while the second one, by the wife. 2. The assessment in respect of the petitioners was completed under Section 153 A read with Section 143 of the Income Tax Act, which was subjected to challenge by filing appeal before the Appellate Authority. In view of the coercive proceedings pursued in the meanwhile, the petitioners were constrained to approach this Court by filing W.P.(C)Nos.28880/2011 & 28876/2011. The said writ petitions were finalised as per Ext.P1 judgment, directing the second respondent/Appellate Authority to pass final orders in the appeal within the time as stipulated therein. Since the proceedings could not be finalised within the time stipulated, time was sought to be extended by filing separate applications and the extension of time sought for was W.P.(C)No.5364, 5395 of 2013 2 granted by this Court as borne by Ext.P2/P2 A. In the course of further proceedings, the petitioners were served with a notice of hearing dated 3.1.2013 informing the date of hearing scheduled on 7.1.2013. Because of some personal inconvenience of the authorised representative, adjournment was sought for as per Ext.P4 dated the same day i.e. 7.1.2013, pursuant to which the matter was adjourned to 10.1.2013, as discernible from the materials on record. It is the case of the petitioners that, the petitioners appeared through their authorised representative on 10.1.203, but the second respondent was absent on that day and the petitioners were let known that they would be intimated as to the next date of hearing. However, without any further notice, the proceedings came to be finalised vide Ext.P3 order dated 17.1.2013 passed by the second respondent, behind the back of the petitioners, which in turn is under challenge in this writ petition. 3. A statement has been filed by the learned Standing Counsel on behalf of the respondents pointing out that many an opportunity of hearing was given to the petitioners, despite which the same was not properly made use of and it was in the said circumstance, that the W.P.(C)No.5364, 5395 of 2013 3 second respondent was constrained to finalise the proceedings as per Ext.P3 order on 17.1.2013. The particulars of the various postings have been given in paragraph 3, which shows the last posting on 10.1.2013. However, it is conceded in paragraph 4 that the second respondent, due to some urgent personal reasons, was on leave on 10.01.2013 and that the petitioners could have filed their submissions, if any, in writing, for which the office was specifically instructed to have accepted the same. It is also mentioned in the said paragraph that the notice dated 3.1.2013 clearly specified “ attendance is not necessary if you wish that the appeal may be decided on the basis of written submissions”. This is sought to be relied on by the revenue to contend that the petitioners did not file any written submission either on 10.1.2013 or even thereafter till the proceedings were finalised on 17.1.2013. 4. This Court finds it difficult to accept the above proposition. The notice dated 3.1.2013 only alerted the petitioners of their right to dispense with the chance to have personal hearing and to file written submissions, if the appellant desired to have the matter decided W.P.(C)No.5364, 5395 of 2013 4 accordingly on the basis of written submissions, upon which the attendance was not necessary. It was all the more open for the petitioners to have appeared and presented the arguments through authorised representative, without having the necessity to file any written submissions. It was accordingly that the petitioners were present in the office of the second respondent on 10.1.2013. This being the position, there was no need, necessity or occasion for the petitioners to have submitted any written submissions either on 10.1.203 or on any other date before 17.1.203, so long as the petitioners desired the matter to be presented through the authorised representative. This Court finds that the proceeding finalised by the second respondent by passing Ext.P3 order is not liable to be sustained any more, for having virtually denied an effective opportunity of hearing. Accordingly, the impugned orders - Ext.P3 in both the writ petitions, are set aside and the second respondent is directed to reconsider the matter and pass appropriate orders in accordance with law, after giving an effective opportunity of hearing to the petitioners. The proceedings as above shall be finalised at the earliest, at any rate within 'three months' from W.P.(C)No.5364, 5395 of 2013 5 the date of receipt of a copy of this judgment. It is made clear that the petitioners shall make appropriate arrangements to appear in the hearing to be fixed by the second respondent, either in person or through an authorised representative, without seeking for any adjournment, unless for compelling reasons to the satisfaction of the second respondent. The interim order passed by this Court vide Exts.P2/P2A will continue till such time. Both the writ petitions are allowed to the above extent. No cost. P.R.RAMACHANDRA MENON JUDGE sv. W.P.(C)No.5364, 5395 of 2013 6 "