M/S.infodrive Software Ltd v. Deputy Commissioner Of Income Tax International Taxation – I(2) Chennai – 600 006

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :25.06.2019 CORAM THE HON'BLE MR.JUSTICE M.SUNDAR W.P.Nos.1889 & 1897 of 2019andW.M.P.Nos.2088, 2092, 2095, 2100, 2101 and 2103 of 2019andW.M.P.No.7163 & 7165 of 2019 M/s.Infodrive Software Ltd.,Represented by its Director,Andrew Niranjan SeshiahNo.10/44, Thomas Nagar, Little Mount,Saidapet, Chennai – 600 015. ..Petitioner in both W.Psvs Deputy Commissioner of Income TaxInternational Taxation – I(2)Chennai – 600 006 ..Respondent in both W.Ps Prayer in W.P.No.1889 of 2019: Writ Petition filed underArticle 226 of the Constitution of India praying to issue a Writof Certiorarified Mandamus, calling for the records of theRespondent contained in its order dated 31.12.2018 passed underSection 201(1)/201(1A) r/w Section 254 of the Income Tax Act,1961, in respect of assessment year 2011-12 for PANNo.AAACI9430R and to quash the same as arbitrary, illegal andunconstitutional and to consequently direct the case to theRespondent for a fresh order to be passed in accordance withlaw, and pass such further or other orders as the Court may deemfit in the interest of justice. Prayer in W.P.No.1897 of 2019: Writ Petition filed underArticle 226 of the Constitution of India praying to issue a Writof Certiorarified Mandamus, calling for the records of theRespondent contained in its order dated 31.12.2018 passed underSection 201(1)/201(1A) r/w Section 254 of the Income Tax Act,1961, in respect of assessment year 2010-11 for PANNo.AAACI9430R and to quash the same as arbitrary, illegal andunconstitutional and to consequently direct the case to theRespondent for a fresh order to be passed in accordance withlaw, and pass such further or other orders as the Court may deemfit in the interest of justice. https://hcservices.ecourts.gov.in/hcservices/ This common order will dispose of these two writ petitions. 2. Mr.Suhrith Parthasarathy, learned counsel on record forthe writ petitioner in both these writ petitions and Ms.HemaMuralikrishnan, learned Senior standing counsel (IT) on behalfof the lone official respondent in both these writ petitions arebefore this Court. Counter affidavits have been filed, commonrejoinder has also been filed and pleadings are complete. 4. Though there are elaborate pleadings, learned counsel onboth sides confined their submissions to a very limited aspectof the matter namely personal hearing to be afforded to the writpetitioner post remand to the Assessing officer made by the'Income Tax Appellate Tribunal' ['ITAT' for the sake of brevity]. 5. These two writ petitions pertain to two assessment yearsnamely 2010-11 and 2011-12, hereinafter 'said AYs' in plural andsaid 'AY' in singular for the sake of brevity. With regard tothe said AYs, writ petitioner was aggrieved by the assessmentmade the Assessing officer and the writ petitioner carried thematter to ITAT via a statutory appeal to the Commissioner(Appeals). The matter culminated in ITAT by way of two statutoryappeals namely ITA Nos.397 and 398 of 2014. 6. After full contest, i.e., after hearing both sides, ITATpassed a common order in the aforesaid two ITAs pertaining tosaid AYs and this common order is dated 30.06.2017. 7. Considering the narrow compass on which, the instantwrit petitions now turn, suffice to say that ITAT remanded thematter back to the Assessing officer(Respondent in these writpetitions) with a direction to issue definite findings aftergiving reasonable opportunity to the assessee i.e., the writpetitioner in these two writ petitions before this Court. 8. Referring to the ITAT order, learned counsel for writpetitioner submitted that reasonable opportunity has not beengiven to the writ petitioner and notwithstanding the pleadings https://hcservices.ecourts.gov.in/hcservices/ 6. After full contest, i.e., after hearing both sides, ITATpassed a common order in the aforesaid two ITAs pertaining tosaid AYs and this common order is dated 30.06.2017. 7. Considering the narrow compass on which, the instantwrit petitions now turn, suffice to say that ITAT remanded thematter back to the Assessing officer(Respondent in these writpetitions) with a direction to issue definite findings aftergiving reasonable opportunity to the assessee i.e., the writpetitioner in these two writ petitions before this Court. 8. Referring to the ITAT order, learned counsel for writpetitioner submitted that reasonable opportunity has not beengiven to the writ petitioner and notwithstanding the pleadings https://hcservices.ecourts.gov.in/hcservices/ in the affidavits filed in support of these writ petitions aswell as the rejoinder, learned counsel, as mentioned supra,confined and abridged his submissions to this one aspect of thematter. 9. To demonstrate that adequate opportunity has not beengiven to the writ petitioner, learned counsel submitted thatafter the aforesaid order dated 30.06.2017 made by ITAT, thewrit petitioner sent a communication dated 07.09.2018 to the 1[st]respondent. This communication is referred to only for thelimited purpose of showing that the office address of the writpetitioner is in Saidapet, Chennai-600 015, India. To beprecise, the name of the writ petitioner and the address readsas follows: 'Info-Drive Software LimitedNo.10/44, Thomas Nagar, Little Mount,Saidapet, Chennai – 600 015, Indiawww.infodriveservices.com' 10. Thereafter, the sole respondent, sent a communicationdated 27.12.2018 to the writ petitioner, calling upon the writpetitioner to submit, the order of the ITAT by 11.00 am on31.12.2018. To be noted, 27.12.2018 falls on a Thursday. Thiscommunication was received by the writ petitioner on 29.12.2018(Saturday) and the ultimatum is 11.00 am on 31.12.2018 (Monday).In other words, there was only one day between the date of thereceipt of the communication and the 11.00 am ultimatum on31.12.2018 (Monday) and that one day i.e., 30.12.2018, falls onSunday. Highlighting this position, writ petitioner sent anElectronic Mail dated 30.12.2018. After highlighting theaforesaid position, writ petitioner vide this E-mail, requestedthe 1[st] respondent to provide a reasonable opportunity byrescheduling timeline qua the letter dated 27.12.2018, butadmittedly that did not happen. 11. The aforesaid chronicle reveals that adequateopportunity has obviously not been given to the writ petitioner.Considering the chronicle and the same being alluded to supra,no elaboration is required to say that the aforesaidcommunication will certainly not qualify as opportunity, muchless adequate opportunity. 12. Responding to the aforesaid submission of the learnedcounsel for writ petitioner, learned Revenue counsel submittedthat notices were sent prior to 27.12.2018 and the same did notevoke any response or reply from the writ petitioner. In otherwords, learned Revenue counsel says that 27.12.2018 is not thelone communication pertaining to personal hearing and that therehave been earlier communications, which did not evoke anyresponse or reply from the writ petitioner. 13. Learned Revenue counsel submitted that this has beenarticulated with clarity and specificity in Sub paragraph (iv)of paragraph 3 of the counter affidavit and the same reads asfollows: 12. Responding to the aforesaid submission of the learnedcounsel for writ petitioner, learned Revenue counsel submittedthat notices were sent prior to 27.12.2018 and the same did notevoke any response or reply from the writ petitioner. In otherwords, learned Revenue counsel says that 27.12.2018 is not thelone communication pertaining to personal hearing and that therehave been earlier communications, which did not evoke anyresponse or reply from the writ petitioner. 13. Learned Revenue counsel submitted that this has beenarticulated with clarity and specificity in Sub paragraph (iv)of paragraph 3 of the counter affidavit and the same reads asfollows: '3. (iv) As directed by the Tribunal, thePetitioner was issued notice on 06.11.2017, posting thecase for hearing on 14.11.2017 with a request tofurnish all the relevant details. As there was noresponse to the said notice, efforts were made to servenotice through the Inspector of Income Tax on thelatest address available as per return of income filedby the Petitioner for the assessment year 2017-18.However, the attempt did not succeed, as the Respondenthad given its address in the return of income for theassessment year 2017-18 as “Office No.3, No.128, SixthFloor, Crown Court, Cathedral road, Andaman and NicobarIslands, India”, a wrong address. Although the addresswas purposely mentioned as Andaman and Nicobar Islands,the Inspector of Income tax verified the address statedat Cathedral Road in Chennai as well and reported thatthe Petitioner was not available at that address.Therefore the Respondent had to send the above noticeby mail to id: , printed onthe letter head of the Petitioner on 24.12.2018, tofurnish all the relevant details in support of itsclaim. As there was no response to this mail, theRespondent had issued show cause letter dated27.12.2018 at No.10/44, Thomas Nagar, Little Mount,Saidapet, Chennai – 600 015, posting the case forhearing on 31.12.2018, to show cause why the assessmentshould not be completed following the same line of theorder u/s 201(1)/201(1A) of the Act dated 15.12.2011.In response thereto, the Petitioner vide letterdt.30.12.2018 sought four weeks time to submit thedetails called for. Hence the Respondent wasconstrained to pass an order u/s 201(1)/201(1A) of theAct on 31.12.2018 for the A.Y.2011-12 determining thetax and interest of Rs.1,48,44,712/- and Rs.16,70,335/-respectively, totalling to Rs.1,65,15,087/- as the setaside order was getting barred by limitation on31.12.2018 as per the provisions of section 153(3) ofthe Act.' 14. A perusal of the aforesaid articulation and the counteraffidavit as well as the contents of the aforesaid communicationdated 27.12.2018 reveals that the respondents have in fact senta communications prior to 27.12.2018. However, the address hasbeen shown as Office No.3, No.128, Sixth Floor, Crown Court,Cathedral road, Andaman and Nicobar Islands, India. 15. Learned counsel for writ petitioner submits that at thetime of filing online returns, while choosing 'Tamil Nadu','Andaman and Nicobar Islands', which figure one after the other,Tamil Nadu being the last in alphabetical order in the list andAndaman and Nicobar Islands being the first in the list.Therefore, an error had occurred is learned writ petitionercounsel's say. It is so obvious that this is an error, as evenaccording to the counter affidavits and more particularly,paragraph 3(iv), which has been extracted supra and the addressreads as Cathedral Road, but says Andaman and Nicobar Islands,India. 15. Learned counsel for writ petitioner submits that at thetime of filing online returns, while choosing 'Tamil Nadu','Andaman and Nicobar Islands', which figure one after the other,Tamil Nadu being the last in alphabetical order in the list andAndaman and Nicobar Islands being the first in the list.Therefore, an error had occurred is learned writ petitionercounsel's say. It is so obvious that this is an error, as evenaccording to the counter affidavits and more particularly,paragraph 3(iv), which has been extracted supra and the addressreads as Cathedral Road, but says Andaman and Nicobar Islands,India. 16. In the aforesaid backdrop, the communications said tohave been sent prior to 27.12.2018 can safely be ignored, moreso in the light of writ petitioner's affirmation that they hadnot received those communications. This leaves us with thecommunication dated 27.12.2018 and as alluded to supra by thisCourt elsewhere in this order, that communication is certainlynot an opportunity to the writ petitioner much less an adequateopportunity. 17. Therefore, the following common order is passed: (a) Impugned assessment order dated 31.12.2018passed under Section 201(1)/201(1A) r/w Section 254 ofthe Income Tax Act, 1961, in respect of assessment year2011-12 for PAN No. and the impugnedassessment order dated 31.12.2018 passed under Section201(1)/201(1A) r/w Section 254 of the Income Tax Act,1961, in respect of assessment year 2010-11 for PANNo.AAACI9430R are set aside. To be noted, theseimpugned orders are set aside only on the ground ofadequate opportunity / personal hearing not beengranted to the writ petitioner. In other words, thisCourt does not express any opinion or view on themerits of the matter. (b) By consent of both sides, personal hearing isnow fixed on 10.07.2019 at 12.00 Noon and the venue,shall be the office of the sole respondent. (c) The writ petitioner undertakes to avail thepersonal hearing on the aforesaid date, time and venueand produce documents. d) On the personal hearing being so availed in theaforesaid manner, the respondent shall embark upon theexercise of returning findings in accordance with thecommon order of ITAT dated 30.06.2017 made in ITANos.397 & 398 of 2014, as expeditiously as possible. 18. These two writ petitions are disposed of with theaforesaid directions. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/- Assistant Registrar //True Copy// kak Sub Assistant Registrar ToDeputy Commissioner of Income TaxInternational Taxation – I(2)Chennai – 600 006 +1cc to Mr.Arun Karhik Mohan, Advocate, S.R.No. 52915+1cc to Mr.Hema Muralikrishnan, Advocate, S.R.No. 52498W.P.Nos.1889 & 1897 of 2019andW.M.P.Nos.2088, 2092, 2095, 2100,2101 and 2103 of 2019andW.M.P.No.7163 & 7165 of 2019BS(CO)GN(24/07/2019)