By Advs.sri.harisankar v. Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 29TH DAY OF OCTOBER 2015/7TH KARTHIKA, 1937 WP(C).No. 32844 of 2015 (F) ---------------------------- PETITIONER : ---------------------- M/S. SHALOM WOOD MAGIC, STADIUM BYEPASS ROAD, PALAKKAD, REPRESENTED BY JOSEPH.G.P., PARTNER. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.A.RIYAS (MANJAPPARA) RESPONDENT(S): ---------------------------- 1. THE JOINT COMMISSIONER OF INCOME TAX, PALAKKAD RANGE, PALAKKAD, PIN-678 001 2. THE COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, THRISSUR-680 001 BY SRI.TOJAN J VATHIKULAM,SC SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C).NO.32844/2015 APPENDIX PETITIONER'S EXHIBITS: P1COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER FOR THE YEAR 2012-13 DATED 27/03/2015PETITIONER FOR THE YEAR 2012-13 DATED 27/03/2015 P2COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 29/04/2015RESPONDENT DATED 29/04/2015 P3COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 29/04/2015RESPONDENT DATED 29/04/2015 P4COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 30/09/2015. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO JUDGE A.K.JAYASANKARAN NAMBIAR, J. =========================================== W.P.(C). No. 32844 of 2015 ===================================================== Dated this the 29[th] day of October, 2015 JUDGMENT The challenge in the writ petition is against Ext.P4conditional order of stay passed by the 2[nd] respondent in an appealpreferred by the petitioner against an order of assessment underthe Income Tax Act. In Ext.P4 order, the 2[nd] respondent found that,although the notice regarding the posting of hearing of the staypetition was sent by registered post/acknowledgment due to theaddress of the petitioner, the said notice was returned by the postalauthority with a remark “locked”. Under the said circumstances,and seeing that there was no appearance on behalf of thepetitioner, the 2[nd] respondent proceeded to dispose the staypetition, without hearing the petitioner and directed payment of50% of the demand, subject to payment of the balance 50% in tenequal monthly installments. The grievance of the petitioner in thewrit petition is essentially that the 2[nd] respondent did not take anyfresh steps, after the notice intimating the petitioner of the hearingof the stay petition was returned on the first occasion with theendorsement “locked”. It is pointed out that, Ext.P4 order wasserved on the petitioner at the same address and the petitionerreceived the same. W.P.(C). No. 32844 of 2015 2.I have heard the learned counsel appearing for thepetitioner as also the learned Standing Counsel appearing for therespondents. W.P.(C). No. 32844 of 2015 2.I have heard the learned counsel appearing for thepetitioner as also the learned Standing Counsel appearing for therespondents. 3.On a consideration of the facts and circumstances ofthe case and the submissions made across the bar, I find thatExt.P4 order was passed against the petitioner without hearinghim. The 2[nd] respondent on receiving the posting notice that wassent to the petitioner with an endorsement “locked” from thepostal authority, ought to have taken steps to either affix thenotice at the premises or resort to some other mode ofcommunication of the notice to the petitioner. It is on account ofthe inaction of the 2[nd] respondent, to resort to any alternateprocedure for service of notice that the petitioner was not able toappear at the hearing scheduled on 16.09.2015. At any rate, thepetitioner has approached this Court with the present writpetition, challenging the said order. On a consideration of thefactual circumstances in this case, I feel that the petitioner shouldbe afforded an opportunity of a personal hearing before the 2[nd]respondent. Accordingly, I quash Ext.P4 order and direct the 2[nd]respondent to pass fresh orders in the matter, after hearing the W.P.(C). No. 32844 of 2015 petitioner, within a period of one month from the date of receipt ofa copy of this judgment. To enable the 2[nd] respondent to do so, Idirect the petitioner to appear before the office of the 2[nd]respondent at 11 AM on 16.11.2015. The writ petition is disposed as above. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE