THEKKINIAN POULOSE VARKEY, V. THE ASSISTANT COMMISSIONER OF INCOME TAX,

WP(C)/33499/2019

AI Insights

The case involves a writ petition filed by Thekkinian Poulose Varkey, the proprietor of T.P. Constructions, challenging an assessment order issued by the Assistant Commissioner of Income Tax, Thrissur. The petitioner argued that the assessment order was passed without an effective opportunity for hearing, shortly after the submission of a reply to a pre-assessment notice. The respondent countered that the petitioner was given adequate notice and opportunity to respond, which was not utilized within the stipulated time. The court examined the procedural compliance of the assessment process and found no violation of the principles of natural justice, leading to the dismissal of the writ petition.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 767627 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 11-12-2019
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: ANIL NAIR; SREEJITH NAIR; ARYA ANIL; GOKULRAJ; HARINI
• Keywords: Appeal; Assessment Order; Effective opportunity of hearing; Jurisdictional Error; Natural Justice
• Section: 226

Judgement Text

"W.P.(C).No.33499/19 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941 WP(C).No.33499 OF 2019(J) PETITIONER/S: THEKKINIAN POULOSE VARKEY, AGED 55 YEARS PROPRIETOR, T.P.CONSTRUCTIONS, AVM COMPLEX, CHIRANGARA KORATTY SOUTH P.O., THRISSUR-680308. BY ADVS. SRI.ANIL D. NAIR SRI.SREEJITH R.NAIR SMT. ARYA ANIL SHRI.GOKULRAJ L. SMT.SRI HARINI S.P. RESPONDENT/S: THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2 (1), THRISSUR-680001. OTHER PRESENT: SC SRI.JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.33499/19 2 JUDGMENT The challenge in the writ petition is to Ext.P3 assessment order passed in relation to the petitioner under the Income Tax Act for the assessment year 2017-18. In the writ petition, it is the case of the petitioner that Ext.P3 assessment order was passed without affording an effective opportunity of hearing to the petitioner and that it was passed within a day after the submission of Ext.P2 reply by the petitioner. 2. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent. 3. The learned Standing Counsel would submit that the notice inviting objections to the proposal for assessment had been served as early as on 03.10.2019 and the petitioner was called upon to furnish details to clarify the doubts raised by the department. The response to the said query raised by the department was not received by the department within the time indicated in the notice and it was under those circumstances that the respondents proceeded to pass Ext.P3 order on 26.11.2019. Responding to the submission of the learned counsel for the petitioner, that a request for extension of time had been preferred before the respondent, it is clarified that, although a request was made on 11.10.2019 for extension of time to W.P.(C).No.33499/19 3 furnish the objections, no objections were filed within a reasonable time thereafter and the assessing authority waited for more than a month before passing Ext.P3 order. It is stated that under the said circumstances, the respondent cannot be faulted for having completed the assessment without considering the belated reply that was filed by the petitioner to the pre- assessment notices that was issued to him. 4. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find force in the contention of the learned counsel for the respondent that Ext.P3 order was passed after giving sufficient opportunity to the petitioner to prefer his objections to the queries raised by the department, and after granting an opportunity of hearing to the petitioner before completing the assessment. I do not find Ext.P3 order to be vitiated by any jurisdictional error or non-compliance with the rules of natural justice so as to interfere with the same in these proceedings under Article 226 of the Constitution of India. Resultantly, I dismiss the writ petition in its challenge against Ext.P3 order and relegate the petitioner to his alternative remedy of filing an appeal before the first appellate authority under the Act. Taking note of the submission of the learned counsel for the petitioner that he would require some time to move the appellate authority, I direct that recovery proceedings pursuant to Ext.P3 assessment order shall be kept in abeyance for a period of three weeks so as to enable the petitioner to W.P.(C).No.33499/19 4 move the appellate authority in the meanwhile. The petitioner shall produce a copy of the writ petition together with a copy of this judgment before the respondent for further action. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE okb //True copy// P .S. to Judge W.P.(C).No.33499/19 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 3.10.2019 ISSUED BY THE RESPONDENT. EXHIBIT P1 A TRUE COPY OF ANNEXURE ALONG WITH EXHIBIT P1 NOTICE. EXHIBIT P2 TRUE COPY OF ACKNOWLEDGEMENT OF THE REPLY FILED ALONG WITH REPLY FILED BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 26.11.2019 PASSED BY THE RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22.9.2017 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2015-16. EXHIBIT P5 TRUE COPY OF THE LEDGER ACCOUNT OF THE PETITIONER. "