K.raja Guru v. The Commissioner Of Income Tax-I, Madurai

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HONOURABLE MR.JUSTICE P.N.PRAKASH K.Raja Guru.. Petitioner Vs. 1. The Commissioner of Income Tax-I, Madurai No.2, V.P.Rathina Samy Nadar Road Madurai 625 002 2. The Additional Commissioner of Income Tax Range II, Madurai Madurai 625 002 3. The Assistant Commissioner of Income Tax Circle II, Madurai Madurai 625 002.. Respondents Petition filed under Article 226 of The Constitution ofIndia, praying for the issuance of a Writ of Certiorari, callingfor the records of the 3rd respondent in P.A.No.R-7141/CIR-II/MDU dated 31.12.2002 and quash the same.For Petitioner..No appearanceFor Respondents..Mr.M.SwaminathanORDER The Assistant Commissioner of Income Tax, Circle II, Maduraiissued a show cause notice dated 31.12.2002 to the petitionerstating that the Assessing Officer has reason to believe thatthe petitioner has had taxable income for the assessment year1996-1997 and therefore, by the impugned order, had called uponthe petitioner to show cause within 30 days from the date ofreceipt of the notice as to why assessment order should not bepassed. The petitioner received the show cause notice dated31.12.2002 and has filed the present writ petition alleging thatthe same has been issued beyond the period of limitation. 2. Along with the main writ petition, in W.P.M.P.No.12244 of2003, the petitioner had made the following prayer:"This Hon'ble Court may be pleased to grant an order of https://hcservices.ecourts.gov.in/hcservices/ ad-interim injunction restraining the 3rd respondent,their men, agents, servants, employees or any otherperson claiming through or under them from in anymanner acting upon the impugned notice P.A.No.R-7141/CIR-II/MDU dated 31.12.2002 pending disposal ofthe above writ petition." 3. On 27.3.2013, when the writ petition came up foradmission, this Court passed the following order in WPMPNo.12244 of 2003:"Matter shall be listed on 10.4.2003 to enable thecounsel for respondents to obtain instruction. Interiminjunction till 10.4.2003." "Learned counsel for the revenue submits that theassessment has been completed before notice in theinterim petition was received by them.Further proceedings pursuant to the assessmentshall be kept in abeyance until the department filescounter and orders are finally passed. Notice Post after vacation.On 25.8.2003, this Court passed the following order: "Interim order granted on 10.4.2003 is made absolute" On 25.1.2017, this Court passed the following order:"The petitioner K.Raja Guru filed this writpetition through Advocate Mr.T.R.Senthil Kumar. Duringthe pendency of this writ petition, Mr.T.R.SenthilKumar was appointed as Senior Standing Counsel forIncome Tax Department and therefore he sent acommunication dated 10.1.2017 by Registered Post withAcknowledgment due to the last known residence ofK.Raja Guru, but an envelope had returned unserved onthe ground that "no such addressee". Mr.Senthil Kumarfiled a memo dated 19.1.2017, narrating the aforesaidfacts and also enclosing a copy of the communicationdated 10.1.2017 together with photocopies of thereturned envelope.2. In the affidavit sworn to by Mr.K.Raja Guru, hehas given his address as "H-14, Ellis Nagar, Madurai- 625 016". Mr.Senthil Kumar, Advocate, has sent thecommunication dated 10.1.2017 to the very sameaddress, but the same has been returned to the sendoras stated above. Mr.Senthil Kumar stated that he doesnot have any other address of the petitioner. It isthe duty of the client to keep in touch with hisadvocate and keep him informed of any change of address and also to know about the development in thiscase. address and also to know about the development in thiscase. 3. On the direction of this Court, the name ofK.Raja Guru/petitioner was printed in the cause liston 19.1.2017 and 25.1.2017. Though the name of RajaGuru has been printed in the cause list, there is noappearance. Therefore, this Court proceeded to perusethe records and hear Mrs.Pushpa, learned StandingCounsel for Income Tax Department. 4. Mrs.Puspha, learned Standing Counsel for Incometax Department submitted that even before this Courthad granted interim orders in this writ petition, theauthorities have completed assessment proceedings andtherefore, this writ petition has become infructuous.She also submitted that she would produce a copy ofthe assessment order before this Court on the nexthearing date. 5. Recording the above submission, the matter isadjourned to 2.2.2017 for orders at the top of thelist. 4. Today, when the writ petition came up for hearing,Mr.M.Swaminathan, learned Standing counsel for the Income Taxfairly submitted that the Department was not able to ascertainas to when the assessment order was passed. However, he broughtto the notice of this Court the order dated 27.2.2007 passed bya Division Bench of this Court in W.P.No.9686 of 2003 on asimilar writ petition filed by one K.Jeyaraj, who is brother ofthe present petitioner. In W.P.No.9686 of 2003,. this Courtpassed the following order:"3. Concededly, the petitioner challenges thenotices under sections 148 and 143(2) of the IncomeTax Act. Though the petitioner raised several groundsincluding the question of limitation, it is seen fromthe counter affidavit filed by the 3rd respondent thatthe assessment relating to the petitioner wascompleted and demand notice was issued to thepetitioner. Though the petitioner obtained interimorders, it is seen from the counter affidavit thatbefore the receipt of orders of this Court grantinginterim stay, the demand notice was issued. In view ofthe statement made in the counter affidavit that theassessment was completed and demand notice was issued,this writ petition filed challenging the notices hasbecome infructuous." 5. Under ordinary circumstances, this Court would havefollowed the order dated 27.2.2007 passed in W.P.No.9686 of2003, but in the absence of the Department, informing this Courtas to when the actual assessment was passed, this court is notable to follow the Division Bench order. However, against the https://hcservices.ecourts.gov.in/hcservices/ assessment order, the assessee is entitled to file an appealbefore the Commissioner of Income Tax under section 246 of theIncome Tax Act. Against the order of the Commissioner, theassessee can also file a further appeal before the Income TaxAppellate Tribunal under section 252 of the Income Tax Act. Inthe light of the aforesaid remedies available to the petitioner,the challenge to the show cause notice is unfounded. 6. In the result, this writ petition is dismissed with thefollowing directions:"The Department is directed to serve the assessmentorder on the petitioner within one month from the dateof receipt of a copy of this order so as to enable thepetitioner to file an appeal before the appellateauthority. If the assessment order has not been alreadypassed, the Department is directed to pass anassessment order, after giving an opportunity to theassessee, within six months from the date of receipt ofa copy of this order." No costs. Sd/- Asst.Registrar (CS II ) /true copy/ To Sub Asst. Registrar 1. The Commissioner of Income Tax-I, Madurai No.2, V.P.Rathina Samy Nadar Road Madurai 625 002 2. The Additional Commissioner of Income Tax Range II, Madurai Madurai 625 002 3. The Assistant Commissioner of Income Tax Circle II, Madurai Madurai 625 002 +1 cc to Mr.M.Swaminathan,advocate,sr.7056. vsn(co)krd 2/3 W.P.No.9636 of 2003