Dr.s.gurushankar v. The Commissioner Of Income Tax

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 22.07.2020CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANANAND THE HONOURABLE MR.JUSTICE P.RAJAMANICKAM W.A.(MD)No.481 of 2020 and C.M.P.(MD)No.3455 of 2020against WP(MD)No.5225 of 2020 Dr.S.Gurushankar ... Appellant/Petitioner Vs. 1.The Commissioner of Income Tax, (Appeals-19, Chennai) Office of the Commissioner of Income Tax (Appeals-19) 304, Investigation Buildings, Mahathma Gandhi Road, Nungambakkam, Chennai - 600034. 2.The Deputy Commissioner of Income Tax, Central Circle-1, Madurai (i/c). 3.Assistant Commissioner of Income Tax, Central Circle - 1, Central Circle - 1, Madurai - 1.... Respondents / Respondents Prayer: Writ Appeal filed under Clause 15 of Letters Patent,against the order of this Court made in W.P.(MD) No.5225 of 2020dated 12.03.2020. Prayer in WP(MD). 5225 of 2020 : Writ Petition is filed under Article 226 of theConstitution of India, praying this Court Calling for the recordsof the third respondent in his assessment order dated 31.12.2019in No.ITBA/AST/S/143(3)/2019-20/1023534727(1) in so far as thecomputation made under clauses 18 to 21 of the computation sheet(No.ITBA/AST/S/2013/2019-20/1023534824(1) attached to the saidassessment order passed by the 3rd respondent for the assessmentyear 2017-2018. https://hcservices.ecourts.gov.in/hcservices/ For Appellant: Mr.K.Subramaniam Senior Counsel for Mr.S.Ramesh For Respondents : Mrs.S.Srimathy Special Government Pleader for the Respondents J U D G M E N T (Judgment of the Court was delivered by M.SATHYANARAYANAN, J.) By consent, the Writ Appeal is taken up for final disposal. 2. Mr.K.Subramaniam, learned Senior Counsel assisted byMr.S.Ramesh, learned counsel appearing for the petitioner hasinvited the attention of this Court to the typed set of papers andwould submit with regard to the invocation of Section 115-JC ofthe Income Tax Act, 1961, three writ petitions in W.P.(MD).Nos.107, 108 and 109 of 2019 were filed. The learned Single Judge,vide interim order, dated 04.01.2019 passed in W.M.P.(MD).Nos.80,81 and 82 of 2019, had granted interim stay and despite thesubsistence of stay, the third respondent had issued thecomputation sheet and Clause Nos. 18, 19, 20 and 21 had computedsome amount based upon Section 115-JC of the Income Tax Act, 1961and therefore, the appellant/writ petitioner was constrained tomake a challenge to the said Clauses. 3. The learned Senior Counsel appearing for theappellant/writ petitioner has drawn the attention of this Court tothe paragraph No.32 of the affidavit filed in support of C.M.P.(MD).No.3455 of 2020 filed this appeal as to the prayer forpassing over the matter so as to enable them to get a copy of therejection of the rectification application as well as a copy ofthe appeal filed against the main assessment order from theChartered Accountant and it is further stated that the Court haddeclined the said request and proceeded to pass orders even on themerits of the order. 4. The learned Senior Counsel would submit that challengingthe impugned Clauses in the computation sheet on the file of thethird respondent, a statutory appeal has also been filed beforethe jurisdictional Commissioner of Income Tax (Appeals) and in thelight of the findings given by the learned Single Judge in theimpugned order, dismissing the writ petition, the appeal would allprobably becomes redundant and prays for setting aside the saidportion of the impugned order with a direction, directing thehttps://hcservices.ecourts.gov.in/hcservices/Commissioner of Income Tax (Appeals) to entertain the appeal, if the papers are otherwise in order and give a disposal on meritsand in accordance with law at on early date. 5. This Court heard the submissions of Mrs.S.Srimathy,learned Special Government Pleader appearing for the respondents 1to 3. the papers are otherwise in order and give a disposal on meritsand in accordance with law at on early date. 5. This Court heard the submissions of Mrs.S.Srimathy,learned Special Government Pleader appearing for the respondents 1to 3. 6. In the light of the submissions made by the learnedSeniorCounselappearingfortheappellant/writpetitioner/assessee praying for appropriate orders, this Court hascarefully considered the rival submissions and also perused thematerials placed before it. 7. It is relevant to extract paragraph No.32 of theaffidavit filed in C.M.P.(MD) No.3455 of 2020 in WA (MD).No.481 of2020:- "32. ... I state that the Junior Counsel,Senthil, who assisted the Counsel on record and alsothe Senior Counsel in the present writ petition and whowas present in the Court Hall when the above writpetition was taken up for hearing for admission on12.03.2020 has filed a supporting affidavit statingthat the Senior Counsel requested the Honourable Courtto pass over the matter in 2.15 p.m., to enable him toget the copy of the rejection of the rectificationapplication as well as the copy of the appeal filedagainst the main assessment order from the petitioner'sChartered Accountant and produce it before the Court at2.15 p.m., but, however, the Court declined to grantthe said prayer for short pass over and has recordedthe finding that the said fact has been suppressed." 8. A perusal of the impugned order which is the subjectmatter in the writ appeal, the learned Single Judge has proceededto discuss the matter and arrived at the findings on merits fromthe paragraph Nos.15 to 32 and in the light of the reasonsassigned in the said paragraphs, has dismissed the Writ Petitionin W.P.(MD) No.5225 of 2020 vide impugned order, dated 12.03.2020. 9. In the light of the above said averments made in C.M.P.(MD).No.3455 of 2020 in Writ Appeal (MD).No.481 of 2020 and alsoin the light of the fact that the statutory appeal has also beenfiled before the first respondent, this Court is of the consideredview that the findings given in paragraph Nos.15 to 32, are liableto be set aside. 10. In the result, the Writ Appeal is partly allowed andthe findings given by the learned Single Judge in paragraphhttps://hcservices.ecourts.gov.in/hcservices/Nos.15 to 32 in the impugned order dated 12.03.2020, passed in W.P.(MD) No.5225 of 2020, are set aside, with a further direction,directing the first respondent to entertain the appeal dated06.01.2020, if the papers are otherwise in order and give adisposal in accordance with law as expeditiously as possible. Nocosts. Consequently, the connected civil miscellaneous petition isclosed. Assistant Registrar(CS-II) / /2020 Sub Assistant Registrar(CS) pknNote: In view of the present lock down owing toCOVID-19 pandemic, a web copy of the order may beutilized for official purposes, but, ensuringthat the copy of the order that is presented isthe correct copy, shall be the responsibility ofthe advocate/litigant concerned. To 1.The Commissioner of Income Tax, (Appeals-19, Chennai) Office of the Commissioner of Income Tax (Appeals-19) 304, Investigation Buildings, Mahathma Gandhi Road, Nungambakkam, Chennai - 600034. 2.The Deputy Commissioner of Income Tax, Central Circle-1, Madurai (i/c). 3.Assistant Commissioner of Income Tax, Central Circle - 1, Madurai - 1. Central Circle - 1, Madurai - 1. +5 CC to M/s.S.RAMESH, Advocate ( SR-13192[F] dated 23/07/2020 ) and https://hcservices.ecourts.gov.in/hcservices/