By Advs. Sri. R v. Easwar (Sr.) Sri. Sidharth A. Menon Sri. Muhammed Aljuq A. Smt. Rubal Bansal(D/3897/2010) Sri. Prakhar Pandey(D/4368/2019) Smt. Sandra Mariya(K/1690/2023

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 11 DAY OF APRIL 2024 / 22ND CHAITHRA, 1946WP(C) NO. 14409 OF 2024 PETITIONER: LERIC REECHES,AGED 51 YEARS, VP-4/442 THUSHARAM, VIZHINJAM P. O., TRIVANDRUM, KERALA, PIN – 695521. BY ADVS. SRI. R. V. EASWAR (SR.) SRI. SIDHARTH A. MENON SRI. MUHAMMED ALJUQ A. SMT. RUBAL BANSAL(D/3897/2010) SRI. PRAKHAR PANDEY(D/4368/2019) SMT. SANDRA MARIYA(K/1690/2023) RESPONDENTS: 1INCOME TAX OFFICER,WARD 2(1), TRIVANDRUM, ROOM NO:A-104, 1ST, AAYKAR BHAWAN, IST FLOOR, KAWDIAR P. O., THIRUVANANTHAPURAM, KERALA, PIN – 695003. 2ASSESSMENT UNIT INCOME TAX DEPARTMENT (NFAC,)NORTH BLOCK, NEW DELHI,REPRESENTED BY CIT (NFAC), PIN – 110001. BY ADVS. SRI. CHRISTOPHER ABRAHAM - SC SRI. KEERTHIVAS GIRI - SC SRI. P. G. JAYASHANKAR - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No. 14409 of 2024 ------------------------- Dated this the 11[th] day of April, 2024 JUDGMENT 1.Heard Mr. R. V. Easwar, learned Senior Counsel for thepetitioner assisted by Ms. Rubal Bansal, Prakhar Pandey, Sidharth A.Menon and Mr. Muhammed Aljuq A. and Mr. Christopher Abraham,learned Senior Standing Counsel for the Revenue. 2.The present writ petition has been filed impugning theassessment order dated 13.03.2024 passed under the provisions ofSection 147 read with Section 144 and 144B of the Income Tax Act,1961 for the assessment year 2016-17. 3.The learned Senior Counsel for the petitioner submits that hewill confine his arguments only on the point of violation of theprinciples of natural justice and denial of effective hearing to thepetitioner. 4.The petitioner, an assessee under the provisions of the Act,did not file return of his income for the assessment year 2016-17under Section 139 of the Act. 5.The information available with the Department would suggest that the petitioner has sold an immovable property to M/s.Greenleaf Resorts Private Limited during the financial year 2015-16relevant to the assessment year 2016-17. The Department was ofthe view that the capital gains earned by the petitioner in thistransaction has escaped assessment for income tax under theprovisions of the Act. Therefore, Show Cause Notice was issued tothe petitioner and after fixing the hearing on 13.03.2023 and24.03.2023, the petitioner filed reply to the Show Cause Notice and,thereafter order under Section 148A(d) of the Act was passed on29.03.2023 for issuing notice under Section 148 of the Act. Inresponse to the said notice, the petitioner filed return of his incomefor the assessment year in question. In the while, petitioner filedreply to the Show Cause Notice dated 22.12.2023 opted forpersonal hearing through video conferencing. The petitioner wasprovided the link, however, the petitioner could not join the link fortechnical failure on the part of the Department. To that effect, thepetitioner had taken the screenshot which has been placed onrecord as Exhibit P-14 and also addressed e-mail regarding the issuethat the petitioner could not log in to address the argument.However, despite this e-mail addressed to the Department, no further opportunity was given to the petitioner and the impugnedorder has been passed. further opportunity was given to the petitioner and the impugnedorder has been passed. 6.It is submitted by the learned Senior Counsel for the petitionerthat the opportunity of hearing means ‘effective opportunity ofhearing’ and that the petitioner could not log in to address theargument because of the technical failure in the website itself,there was no hearing at all. It is submitted that since there has beenfailure of compliance of the statutory provision of hearing as well asprinciples of natural justice as enshrined under Article 14 of theConstitution of India, the order suffers from inherent illegality and,therefore, it may be set aside. 7.Mr. Christopher Abraham, learned Senior Standing Counsel forthe Revenue is not in a position to dispute the screenshot and the e-mail placed on record by the petitioner. Mr. Christopher Abraham, learned Senior Standing Counsel for 8.Considering the above submissions and taking note of the fact that the petitioner was not given effective hearing and withoutproviding the effective hearing the impugned assessment order hasbeen passed, I am of the considered view that the order suffersfrom violation of the principles of natural justice and, therefore, thesame is set aside. The matter is remitted back to the 2[nd] respondentto provide fresh link to the petitioner intimating the date and time for hearing and after hearing the petitioner on the date and timefixed, the assessment order should be finalised expeditiously inaccordance with the law. With the aforesaid directions, the present writ petition standsallowed. Svn Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 14409/2024 PETITIONER’S EXHIBITS EXHIBIT P1FINAL ASSESSMENT ORDER DATED 13.03.2024 ISSUEDBY RESPONDENTSBY RESPONDENTS EXHIBIT P2NOTICE OF DEMAND DATED 13.03.2024 ISSUED UNDERSECTION 156 OF THE IT ACTSECTION 156 OF THE IT ACT EXHIBIT P3NOTICE FOR PENALTY DATED 13.03.2024 ISSUED UNDERSECTION 274 READ WITH SECTION 271(1)(C) OF THEIT ACTSECTION 274 READ WITH SECTION 271(1)(C) OF THEIT ACT EXHIBIT P4NOTICE FOR PENALTY DATED 13.03.2024 ISSUED UNDERSECTION 274 READ WITH SECTION 271F OF THE IT ACTSECTION 274 READ WITH SECTION 271F OF THE IT ACT EXHIBIT P5NOTICE DATED 29.03.2023 ISSUED UNDER SECTION 148OF THE IT ACTOF THE IT ACT EXHIBIT P6ORDER DATED 29.03.2023 ISSUED UNDER CLAUSE (D)OF SECTION 148A OF THE IT ACTOF SECTION 148A OF THE IT ACT EXHIBIT P7NOTICE DATED 06.03.2023 UNDER CLAUSE (B) OFSECTION 148A OF THE IT ACTSECTION 148A OF THE IT ACT EXHIBIT P8TRUE COPY OF THE REPLY TO P7 DATED 06.04.2023FILED BY THE PETITIONERFILED BY THE PETITIONER EXHIBIT P9TRUE COPY OF NOTICE DATED 24.08.2023 UNDERSECTION 142(1) OF THE ACT ISSUED BY R2SECTION 142(1) OF THE ACT ISSUED BY R2 EXHIBIT P10TRUE COPY OF NOTICE DATED 22.09.2023 UNDERSECTION 143(2) OF THE IT ACT ISSUED BY R2SECTION 143(2) OF THE IT ACT ISSUED BY R2 EXHIBIT P11TRUE COPY OF SHOW CAUSE NOTICE DATED 22.12.2023ISSUED BY R2ISSUED BY R2 EXHIBIT P12TRUE COPY OF REPLY TO P11 DATED 31.01.2024 EXHIBIT P13TRUE COPY OF EMAIL INTIMATING THE APPROVAL TOATTEND VC HEARING DATED 04.03.2024ATTEND VC HEARING DATED 04.03.2024 EXHIBIT P14TRUE COPY OF EMAIL DATED 07.03.2024 WITHATTACHMENT OF SCREENSHOT EVIDENCING THEATTENDANCE OF PETITIONER IN SCHEDULED MEETING ATTACHMENT OF SCREENSHOT EVIDENCING THEATTENDANCE OF PETITIONER IN SCHEDULED MEETING