Gopal Das v. Principal Commissioner Of Income Tax-5, Asansol & Ors

Form No. J.(2)Item No.12 IN THE HIGH COURT OF JUDICATURE AT CALCUTTACIVIL APPELLATE JURISDICTIONAPPELLATE SIDE HEARD ON: 19.03.2024 DELIVERED ON: 19.03.2024 CORAM: THE HON’BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM AND THE HON’BLE MR. JUSTICE HIRANMAY BHATTACHARYYA M.A.T. 259 of 2024 With I.A. No. CAN 1 of 2024 + CAN 2 of 2024 Gopal Das Vs. Principal Commissioner of Income Tax-5, Asansol & Ors. Appearance:-Mr. Pramit BagMs. Suranjana Chatterjee Mrs. Smita Das De ………for the appellant ………for the respondents JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.) In Re: I.A. No. CAN 1 of 2024 1.We have heard Mr. Pramit Bag, learned advocate appearing for theappellant and Mrs. Smita Das De, learned Standing counsel appearing forthe respondents. appellant and Mrs. Smita Das De, learned Standing counsel appearing forthe respondents. 2.There is delay of 48 days in filing the appeal. We have perused the affidavitfiled in support of the petition and we find that sufficient cause has beenshown for not being able to prefer the appeal within the period of limitation.filed in support of the petition and we find that sufficient cause has beenshown for not being able to prefer the appeal within the period of limitation.3.I.A. No. CAN 1 of 2024 is allowed and the delay in filing the appeal iscondoned.condoned. In Re: M.A.T. 259 of 2024 4.The unsuccessful writ petitioner is the appellant before us. The writpetition was filed challenging an order passed by the PrincipalCommissioner of Income Tax, Asansol (for brevity, “the PCIT”) dated 23[rd]March, 2021 rejecting the application filed by the appellant under Section264 of the Income Tax Act, 1961 (for brevity, “the Act”). petition was filed challenging an order passed by the PrincipalCommissioner of Income Tax, Asansol (for brevity, “the PCIT”) dated 23[rd]March, 2021 rejecting the application filed by the appellant under Section264 of the Income Tax Act, 1961 (for brevity, “the Act”). 5.It is well-settled principle of law that the Court cannot examine the meritsof the matter and the correctness of the order can be tested only withregard to the decision making process. There are certain set parameters,which would empower the Court to interfere in such orders in exercise ofits powers under Article 226 of the Constitution of India for which thepetitioner has to establish certain grounds, one of which is that there is aviolation of principles of natural justice.of the matter and the correctness of the order can be tested only withregard to the decision making process. There are certain set parameters,which would empower the Court to interfere in such orders in exercise ofits powers under Article 226 of the Constitution of India for which thepetitioner has to establish certain grounds, one of which is that there is aviolation of principles of natural justice. 6.In the instant case, the appellant would contend that though an elaborateapplication was filed under Section 264 of the Act, the PCIT by the orderdated 23[rd] March, 2021 has merely accepted the remand report submittedby the Assessing Officer dated 10[th] March, 2021 and rejected the petition.Though a copy of the remand report was furnished to the appellant alongwith a show-cause notice, the appellant did not avail the opportunity byapplication was filed under Section 264 of the Act, the PCIT by the orderdated 23[rd] March, 2021 has merely accepted the remand report submittedby the Assessing Officer dated 10[th] March, 2021 and rejected the petition.Though a copy of the remand report was furnished to the appellant alongwith a show-cause notice, the appellant did not avail the opportunity by 7. 8. 9. 10. 11. submitting his objections or submitting clarifications to the issues pointedout by the assessing officer in the remand report. 7. 8. 9. 10. 11. submitting his objections or submitting clarifications to the issues pointedout by the assessing officer in the remand report. Be that as it may, the PCIT while considering the application under Section264 of the Act should first take note of the submissions made in theapplication, considered the remand report and then take a decision onmerits and in accordance with law. However, on a perusal of the order dated 23[rd] March, 2021, moreparticularly in paragraph 5, the PCIT has not dealt with the merits of thematter but has rejected the petition taking note of the conduct of theappellant in the assessment proceedings, which were completed underSection 144 of the Act by order dated 4[th] December, 2019. In the application filed under Section 264 of the Act, the appellant pleadsthat he has not received any notice either through e-mail or through speedpost and he was unaware that assessment proceedings were underprogress and therefore, the assessee cannot be termed to have wilfullyignored the notices. Further, the assessee contended that he had a bank credit limit in the formof cash credit for his trading activities in UCO Bank and other factualdetails have also been set out. Further, it is pointed out that the assessment under Section 144 is a high-pitched assessment and the said amount is aggregated cash depositedduring the financial year 2016-17 in the bank account maintained by theassessee. The details of the bank accounts were furnished by the assesseeand the assessee takes a specific stand that no cash deposits were made in the savings account. There are other grounds, which have been raised bythe assessee in the application filed under Section 264 of the Act. 12.Therefore, the PCIT while considering the application has to consider thecorrectness of the said submission and also take note of the remand reportgiven by the assessing officer and also examined the assessment files. It isno doubt true that the assessee did not avail the opportunity grantedpursuant to the show-cause notice dated 18[th] March, 2021. 13. However, in our considered view, since the assessee has lost his right ofappeal and there is an allegation that notices issued by the AssessingOfficer were not received by the assessee either by e-mail or by speed post,without standing on technicalities, we are of the view that one moreopportunity can be granted to the assessee to go before the PCIT. 14. Accordingly, the appeal along with the connected application being, CAN 2of 2024 stand disposed of by directing the appellant to submit his responseto the show-cause notice dated 18[th] March, 2021 within 15 days from thedate of receipt of server copy of this judgement and order. On receipt of thesaid response, the PCIT shall reconsider the matter after taking intoconsideration the submissions of the appellant, the remand report and theresponse to the show-cause notice dated 18[th] March, 2021. The authorizedrepresentative of the appellant shall be afforded an opportunity of personalhearing before a decision is taken. 15.Needless to state that if the appellant fails to avail the opportunity in termsof the aforementioned order, the benefit of this order will not accrue to theappellant and the appeal will stand automatically dismissed withoutreference to this Court. 16.No costs. 17.Urgent photostat certified copy of this order, if applied for, be furnished tothe parties expeditiously upon compliance of all legal formalities. the parties expeditiously upon compliance of all legal formalities. (T.S. SIVAGNANAM) CHIEF JUSTICEI agree. (HIRANMAY BHATTACHARYYA, J.) Pallab/KS AR(Ct.)