By Advs. Sri. Harisankar v. Menon Smt. Meera V. Menon Sri. R. Sreejith Sri. K. Krishna Smt. Parvathy Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 23 DAY OF JANUARY 2024 / 3RD MAGHA, 1945 WP(C) NO. 30992 OF 2022 PETITIONER: M/S. WADAKKANCHERRY SERVICE CO-OPERATIVE BANK LTD.,NO. 3279, THALAPPILLY, WADAKKANCHERRY, THRISSUR,PIN – 680582.REPRESENTED BY ITS SECRETARY, MADANAN K. P. BY ADVS. SRI. HARISANKAR V. MENON SMT. MEERA V. MENON SRI. R. SREEJITH SRI. K. KRISHNA SMT. PARVATHY MENON RESPONDENTS: 1THE INCOME TAX OFFICER,WARD 2 (1), AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR,THRISSUR, PIN – 680001.WARD 2 (1), AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR,THRISSUR, PIN – 680001. 2THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER,INCOME TAX ASSESSMENT UNIT, NATIONAL FACELESS ASSESSMENT CENTRE,DELHI, PIN – 100001. BY ADV. SRI. JOSE JOSEPH – SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No. 30992 of 2022 ------------------------- Dated this the 23[rd] day of January, 2024 JUDGMENT 1.Heard Mr. Harisankar V. Menon assisted by Ms. Parvathy Menon, learned Counsel for the petitioner and Mr. Jose Joseph, learned Senior Standing Counsel for the Income Tax Department. 2.The present writ petition has been filed by the petitionerassessee impugning the assessment order in Exhibit P-3 passedunder Section 143 (3) read with Section 144B of the Income Tax Act,1961 (hereinafter referred to as ‘the Act’ for short) on 23.09.2022. 3.The petitioner’s case was selected for scrutiny through CASSunder the complete scrutiny category. Petitioner claims to be aprimary agricultural society engaged in the business of providingagriculture and agriculture allied loans to its members. 4.The assessee had credited miscellaneous income of Rs.1,30,67,114/- in its return for the assessment year 2020-21. Thenature and source of such income remained unverified on the partof the assessee as the assessee/petitioner did not file anysupporting documents in this regard. 5.During the assessment proceedings, the assessee wasrequired to submit the details and justify its claim of deductionunder Section 80P of the Act. The petitioner did not submit anydetail and explanation in respect of the miscellaneous income of Rs.1,30,67,114/-. The assessment order would disclose that thepetitioner was issued six notices including the show cause noticedated 02.09.2022. The petitioner did not file any response to thenotices issued under Section 143 (2), 142 (1) and reply to the showcause notice was filed only on 15.09.2022. The last date for filingthe reply was 02.09.2022. This reply to the show cause notice wasnot filed before the Faceless Assessment Center but, it was filedbefore the jurisdictional assessment unit. 6.The assessment order is being challenged only on the groundof violation of the principles of natural justice as in the reply dated15.09.2022, the petitioner had requested for personal onlinehearing through video conferencing. According to the petitioner,despite the request having made for personal online hearingthrough video conferencing, no opportunity of personal hearingwas provided and the assessment order has been finalised and,therefore, there has been a violation of the principles of naturaljustice. Thus the impugned assessment order is vitiated and liable to be dismissed. 6.The assessment order is being challenged only on the groundof violation of the principles of natural justice as in the reply dated15.09.2022, the petitioner had requested for personal onlinehearing through video conferencing. According to the petitioner,despite the request having made for personal online hearingthrough video conferencing, no opportunity of personal hearingwas provided and the assessment order has been finalised and,therefore, there has been a violation of the principles of naturaljustice. Thus the impugned assessment order is vitiated and liable to be dismissed. 7.Mr. Jose Joseph, learned Senior Standing Counsel for theIncome Tax Department, on the other hand has submitted that asper Section 144B which prescribe the detailed procedure of facelessassessment etc., and Clause 7 of Sub-Section 6 of Section 144Bprovides that where a variation is proposed in the income or lossdetermination proposal or draft assessment order, an opportunity isto be provided to the assessee by serving a notice calling upon himto show cause why the assessment should not be completed onsuch income or loss determination proposal and while filing thereply within the time prescribed in the show cause notice, theassessee may request for personal hearing. He further submits thatthe manner in which such right could have been exercised wasprovided in the show cause notice itself in Exhibit P-1 dated02.09.2022. The petitioner ought to have filed the reply within thetime granted i.e. on or before 09.09.2022 and request for personalhearing could have been made by clicking the ‘seek videoconferencing’ button available against the show cause notice on e-filing portal. It is also provided that the request could have beenmade only before expiry of compliance date and time for videoconferencing. He, therefore submits that the last date for filing reply was 09.09.2022, the petitioner could have opted the facility ofpersonal hearing through video conferencing before 09.09.2022 bysubmitting the reply online and clicking the ‘seek video conferencing’button available against the show cause notice. In this case, thepetitioner had not filed the reply online and click the ‘seek videoconferencing’ button available against the show cause notice but, hehad filed the reply before the jurisdictional assessment Officerseeking personal hearing as well. As the procedure prescribed forpersonal hearing through video conferencing was not followed, nopersonal hearing has been given. However, the response to theshow cause notice dated 02.09.2022 has been considered in theassessment order and, if the petitioner is aggrieved by the saidassessment order, the petitioner has remedy before the appellateauthority by filing a statutory appeal under the provisions of theAct. 8.I find substance in the submission of Mr. Jose Joseph. Section144B prescribe a detailed procedure for faceless assessmentproceedings. It also provides the procedure for uploading theresponse to the show cause notice etc., and also for making arequest request for online hearing through video conferencing. Thepetitioner did not followed the prescribed procedure and did not submitted his reply on or before 09.09.2022 and did not click the button ‘seek video conferencing’ available against the show causenotice. As the petitioner himself did not comply with the provisionsof Section 144B to avail the facility of personal hearing throughvideo conferencing facility, this Court finds no substance in the writpetition and no substance in the submission that there has been aviolation of the principles of natural justice. 9.In view thereof, the writ petition is dismissed. However, thepetitioner will have liberty to file appeal against the assessmentorder, if the petitioner is so advised. Svn Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 30992/2022 PETITIONER’S EXHIBITS submitted his reply on or before 09.09.2022 and did not click the button ‘seek video conferencing’ available against the show causenotice. As the petitioner himself did not comply with the provisionsof Section 144B to avail the facility of personal hearing throughvideo conferencing facility, this Court finds no substance in the writpetition and no substance in the submission that there has been aviolation of the principles of natural justice. 9.In view thereof, the writ petition is dismissed. However, thepetitioner will have liberty to file appeal against the assessmentorder, if the petitioner is so advised. Svn Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 30992/2022 PETITIONER’S EXHIBITS EXHIBIT P1COPY OF SHOW CAUSE NOTICE ISSUED BY THE 2NDRESPONDENT DTD. 02-09-2022RESPONDENT DTD. 02-09-2022 EXHIBIT P2COPY OF REPLY FILED BY THE PETITIONER BEFORETHE 1ST RESPONDENT DTD. 13-09-2022THE 1ST RESPONDENT DTD. 13-09-2022 EXHIBIT P3COPY OF ORDER ISSUED BY THE 2ND RESPONDENTFOR THE YEAR 2020-21 DTD. 23-09-2022FOR THE YEAR 2020-21 DTD. 23-09-2022 EXHIBIT P4COPY OF NOTIFICATION NO. SO 2745 (E) ISSUEDBY THE UNDER SECRETARY, MINISTRY OF FINANCE,DEPARTMENT OF REVENUE, DELHI DTD. 13-08-2020BY THE UNDER SECRETARY, MINISTRY OF FINANCE,DEPARTMENT OF REVENUE, DELHI DTD. 13-08-2020 EXHIBIT P5COPY OF NOTICE ISSUED BY THE 2ND RESPONDENTDTD. 23-09-2022DTD. 23-09-2022