By Adv.sri.harisankar v. Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR.JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 6 DAY OF OCTOBER 2023/14TH ASWINA, 1945 W.A.NO.1693 OF 2023 AGAINST THE JUDGMENT DATED 13.07.2023 IN W.P(C).NO.39309/2022 OF HIGHCOURT OF KERALA APPELLANT/PETITIONER: MALLISSERI NEELAKANDAN SANKARANUNNI NAMBOODIRI,AGED 63 YEARSMALLISSERI MANA, PARASSERI P O., THADUKKASSERI, KERALASSERI, PALAKKAD – 678641. BY ADV.SRI.HARISANKAR V. MENON BY ADV.SMT.MEERA V.MENON BY ADV.SRI.R.SREEJITH BY ADV.SMT.K.KRISHNA BY ADV.SMT.PARVATHY MENON RESPONDENT/RESPONDENT: THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER, ASSESSMENT UNIT, INCOME TAX DEPARTMENT, NATIONAL FACELESS ASSESSMENT CENTRE, DELHI – 100001. BY SRI.NAVANEETH N. NATH, SC INCOME TAX BY SRI.JOSE JOSEPH, SC INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON06.10.2023, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: J U D G M E N T Dr. A.K. Jayasankaran Nambiar, J. The petitioner in W.P.(C).No.39309/2022 is the appellant hereinaggrieved by the judgment dated 13.07.2023 of the learned SingleJudge that dismissed the writ petition preferred by the appellantimpugning an order of assessment passed by the respondent on theground that it was passed without hearing the appellant and withoutconsidering the reply that the appellant had preferred to thepre-assessment notice. 2. The brief facts necessary for disposal of this writ appeal areas follows: The appellant, who is an agriculturist and an assessee under theIncome Tax Act [hereinafter referred to as the 'IT Act'], had filedreturns for the assessment year 2020-21 under the IT Act. The returnswere subjected to scrutiny by the respondent, who issued Ext.P1notice seeking the objection of the appellant to the proposedassessment. Although six such notices were apparently issued to theappellant for preferring a reply, it is not in dispute that the appellantdid not respond to the earlier notices but responded only to the last W.A.NO.1693 OF 2023 :: 3 :: notice through a reply dated 22.09.2022. It would appear that withoutconsidering the said reply, which was admittedly received by the Officeof the respondent prior to the passing of the assessment order, therespondent proceeded to pass Ext.P3 assessment order. The case ofthe appellant before the writ court was essentially that the reply of theappellant having been received by the respondent before he passedExt.P3 assessment order, the respondent ought to have considered thesaid reply also while passing Ext.P3 order that was impugned in thewrit petition. 3. The learned Single Judge, who considered the matter, foundthat it was on account of the fault on the part of the appellant that theassessment order came to be passed without considering the reply ofthe appellant, and hence, there was no necessity to interfere withExt.P3 order passed by the respondent. The appellant was thereforerelegated to his alternate remedy of preferring an appeal against thesaid assessment order. 4. We have heard Sri.Harisankar V. Menon, the learned counselfor the appellant as also Sri.Navaneeth N. Nath, the learned Standingcounsel for the respondent. 4. Before us, it is the submission of Sri.Harisankar V. Menon,the learned counsel for the appellant that since the respondent had W.A.NO.1693 OF 2023 :: 4 :: received the reply to the pre-assessment notice, albeit after a delay insending the same, it was not proper or fair on the part of therespondent to have proceeded to pass the assessment order withoutconsidering the said reply. 4. We have heard Sri.Harisankar V. Menon, the learned counselfor the appellant as also Sri.Navaneeth N. Nath, the learned Standingcounsel for the respondent. 4. Before us, it is the submission of Sri.Harisankar V. Menon,the learned counsel for the appellant that since the respondent had W.A.NO.1693 OF 2023 :: 4 :: received the reply to the pre-assessment notice, albeit after a delay insending the same, it was not proper or fair on the part of therespondent to have proceeded to pass the assessment order withoutconsidering the said reply. 5. Per contra, it is the submission of Sri.Navaneeth N. Nath, thelearned Standing Counsel for the respondent that the respondent hadprovided ample opportunities to the appellant to prefer a reply, and itwas only thereafter that the respondent proceeded to pass theassessment order. 6. On a consideration of the rival submissions, we find thatwhile it may be a fact that the appellant had occasioned a delay inpreferring a reply to the pre-assessment notice, and it was under thosecircumstances that Ext.P3 assessment order came to be passed, wefind that in the instant case, it is not in dispute that the reply dated23.09.2022 [Ext.P2] furnished by the appellant to the respondent wasreceived in the Office of the respondent well before the date on whichExt.P3 assessment order was passed. In matters of taxation, therespondent is obliged to mete out fairness to the assessees, and in asituation such as the present, where the reply of the assessee hadbeen received in the Office of the respondent, we would think that therequirement of fairness mandated that the Assessing Authority refer tothe said reply also, and deal with the contentions therein, while W.A.NO.1693 OF 2023 :: 5 :: passing the assessment order. Since the said reply was notconsidered, as is evident from a perusal of Ext.P3 assessment order,and further the assessee was not heard prior to the passing of the saidorder, we deem it appropriate to set aside Ext.P3 order in this appeal.Accordingly, we allow this Writ Appeal, by setting aside the impugnedjudgment of the learned Single Judge as also Ext.P3 assessment orderthat was impugned in the writ petition, and direct that the appellantshall appear for a personal hearing through video conference beforethe respondent on 16.10.2023, so as to enable the respondent to passa fresh assessment order, after hearing the appellant and consideringthe reply furnished by the appellant. The respondent shall, on its part,furnish the videoconferencing link to the appellant at least three daysbefore the date of hearing as above. The respondent shall thereafterpass a fresh and reasoned assessment order adverting to thecontentions of the appellant in the reply furnished by him within aperiod of two weeks. The Writ Appeal is allowed as above. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- DR. KAUSER EDAPPAGATH JUDGE