Mcleod Russel India Limited & Anr v. Deputy Commissioner Of Income Tax, Circle 4(1),Kolkata & Ors

16.2.2022 ks WPA 1661 of 2022 sl. 31 McLeod Russel India Limited & Anr. Vs Deputy Commissioner of Income Tax, Circle 4(1),Kolkata & Ors. Mr. Abhrotosh Majumdar, Ld. Sr. Adv.,Mr. Asim Choudhury,Mr. Soham Sen … For the Petitioners.Mr. P.K. Bhowmick,Mr. Soumen Bhattacharya … For the Respondent Nos. 1-6. Heard learned Advocates appearing for the parties. In this writ petition, petitioners have challenged theimpugned order dated 30[th] June, 2021 under Section143(3) read with Section 144C(3) with Section 144B ofthe Income Tax Act, 1961 on the ground of patentviolation of natural justice in passing the impugnedorder before consideration of objection to the draftassessment order dated 31[st] March, 2021 and suchobjection to the draft assessment was sent by SpeedPost on 26[th] of April, 2021 to the Dispute ResolutionPanel under the relevant provision of the Statute and itis the case of the petitioners substantiated by recordthat the said objection was sent by Speed Post beforethe expiry of the time which was 31[st] May, 2021though it reached to the DRP Authority on 10[th] June,2021 over which petitioners have got no control for thefault committed by the Postal Department in deliveringthe documents/objection after the expiry of the time within which petitioners were to file the objectionagainst the draft assessment. After the filing of theobjection to the draft assessment, DRP Authority evenasked for submission of remand report from theAssessing Officer concerned but the Assessing Officerbefore consideration of the pending objection to thedraft assessment by the DRP Authority, passed a finalassessment order on 30[th] June, 2021 and specificallyrecorded in the said final assessment order that it hadverified from the record that no such objection to thedraft assessment order was available before the DRPAuthority which is contrary to record since postaldocument shows that objection to the draftassessment order which was posted before the expiryof the time to file though reached before the DRPAuthority on 10[th] June, 2021 for the fault on the partof the Postal Department but it is an admitted positionthat before passing of the impugned assessment orderwhich was passed on 30[th] June, 2021 already DRPAuthority had received the objection to the draftassessment. It also appears on perusal of the order ofthe DRP Authority rejecting the objection of thepetitioners to the draft assessment is solely on theground that since the final assessment order hasalready been passed, no further order on the aforesaidobjection of the petitioners could be considered. It is noticeable that when the Assessing Officer who himselfpassed assessment order, instead of sending a detailedremand report he could have simply in its remandreport conveyed to the DRP Authority that no purposecould be served when he has already passed the finalassessment order and the DRP Authority should haveconsidered this aspect which is substantiated fromrecord that the objection filed by the petitioners wasposted before the expiry of the time granted by himthough it may have reached lately to him due to postaldelay but such fault cannot be attributed to thepetitioners. Mr. Mazumder, learned senior Advocate appearingfor the petitioners in support of his contention hasrelied on a decision of the Bombay High Court in thecase of Skoda Auto Volkswagen India (P) Ltd. vs.Commissioner (Appeals) reported in (2021) 125taxmann.com 241(Bombay) and particularly onparagraphs 12, 21, 28, 29.1 and 34 to 38 that if aperson establishes that he filed anyappeal/objection/application, date of posting isrelevant and not the date of receipt of theappeal/objection/application for the purpose of limitation. Mr. Bhowmick, learned Advocate appearing for therespondents opposes this writ petition by contending Mr. Mazumder, learned senior Advocate appearingfor the petitioners in support of his contention hasrelied on a decision of the Bombay High Court in thecase of Skoda Auto Volkswagen India (P) Ltd. vs.Commissioner (Appeals) reported in (2021) 125taxmann.com 241(Bombay) and particularly onparagraphs 12, 21, 28, 29.1 and 34 to 38 that if aperson establishes that he filed anyappeal/objection/application, date of posting isrelevant and not the date of receipt of theappeal/objection/application for the purpose of limitation. Mr. Bhowmick, learned Advocate appearing for therespondents opposes this writ petition by contending that since the assessment order has already beenpassed which is an appealable order, this court shouldnot interfere but he could not contradict the facts asdiscussed above which are substantiated by recordthat petitioners’ right to file objection andconsideration of the same before passing the finalassessment order has been infringed in this mater forno fault of him. Considering the submission of the parties andadmitted facts which emerge from record I am of theconsidered view that the interest of justice will be sub-served if the impugned order of assessment dated 30[th]June, 2021 and the impugned order of the DRPAuthority dated 9[th] December, 2021 are set aside andthe matter is remanded to the DRP Authorityconcerned to proceed with the matter from the stage ofreceipt of the objection to the draft assessment and alllegal consequences will follow accordingly. With these observations and directions, this writpetition, being WPA 1661 of 2022 is disposed of. ( Md. Nizamuddin, J. )