Narayanasamy Viswanathan v. Income Tax Officer, Ward

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.02.2019 CORAM THE HONOURABLE DR. JUSTICE ANITA SUMANTH Narayanasamy Viswanathan...Petitioner Vs Income Tax Officer, Ward-5,Income Tax Officer, DP ThottamBehind Ananda Inn, MG RoadPuducherry (UT) - 605003.....Respondent .... Prayer: Writ Petition filed under Article 226 of theConstitution of India, to issue a Writ of Certiorari or anyother appropriate writ application or order under Article 226 ofthe Constitution of India calling for the records on the file ofthe Respondent in PAN: for the Assessment Year 2011-12in passing the impugned assessment order under section 144 readwith section 147 of the Income Tax Act, 1961 dated 13.12.2018and quash the same as illegal, arbitrary and bad in law. For Petitioner : Mr. V. Prakash, Senior Counsel for M.Kaviveerappan For Respondent : Mr. Jaya Prathap, Standing Counsel Mr. Jaya Prathap, Standing Counsel appears for therespondent. By consent of both parties, this Writ Petitioner isdisposed of at the stage of the admission. 2. The writ petitioner has assailed an order of re-assessment dated 13.12.2018 passed exparte in terms of section144 read with section 147 of the Income Tax Act, 1961 ( in shortthe 'Act') for assessment year 2011-12 . https://hcservices.ecourts.gov.in/hcservices/ 3. The proceedings for re-assessment appear to have beeninitiated since the Assessing Authority had received data to theeffect that immovable properties amounting to Rs.1,30,37000/-had been sold and no return of income has been filed by theassessee offering the capital gains from the sale of property totax. 4. The order of assessment is very categoric and states thatno return of income was filed by the assessee nor was thereresponse to any of the notices issued for determining the totalincome. Income has been assessed at Rs.1,16,24,412/- and anotice was issued calling for objections to the proposal. 5. Mr. V. Prakash, learned Senior Counsel for Mr.M.Kaviveerappan, learned counsel for the petitioner submits thata First Information Report had been lodged on 30.07.2018 againstthe petitioner for offences under the provisions of the IndianPenal Code. Pursuant thereto, the petitioner had been inChennai making efforts to obtain anticipatory bail from the HighCourt. 6. A copy of an order of this Court dated 16.11.2018 inCriminal Original Petition No.26678 of 2018 has been placed onfile, where anticipatory bail has been granted to the petitionerfor offences under sections 302, 341 and 109 of the Indian PenalCode, upon condition that the petitioner appear before thelearned Judicial Magistrate, Vanur on all working days at 10:30am until further orders, failing which the order of anticipatorybail would stand revoked. 7. According to the learned Senior Counsel, it is on accountof the pre-occupation of the petitioner to obtain bail andthereafter to comply with the bail conditions imposed that hehad been unable to co-operate and assist the respondent incompletion of assessment proceedings. 8. The bail conditions were relaxed from January 2019 and itwas only at this juncture that the petitioner returned to hisresidence finding that a show cause notice under section 144 ofthe Act had been served by affixture. The petitioner thereaftercontacted the assessing officer and was furnished a copy of theimpugned order of assessment. On merits, the petitioner statesthat the land sold was agricultural in nature and the incomefrom the sale thereof does not attract liability to capitalgains tax. 9. In the facts and circumstances of the case, as noticedabove, I am of the view that the absence of the petitionerduring the assessment proceedings was for genuine reasons. Inthe interests of justice, I set aside the impugned assessment https://hcservices.ecourts.gov.in/hcservices/ 8. The bail conditions were relaxed from January 2019 and itwas only at this juncture that the petitioner returned to hisresidence finding that a show cause notice under section 144 ofthe Act had been served by affixture. The petitioner thereaftercontacted the assessing officer and was furnished a copy of theimpugned order of assessment. On merits, the petitioner statesthat the land sold was agricultural in nature and the incomefrom the sale thereof does not attract liability to capitalgains tax. 9. In the facts and circumstances of the case, as noticedabove, I am of the view that the absence of the petitionerduring the assessment proceedings was for genuine reasons. Inthe interests of justice, I set aside the impugned assessment https://hcservices.ecourts.gov.in/hcservices/ order and direct another opportunity to be afforded to thepetitioner by the assessing officer prior to completion ofassessment. 10. The petitioner shall appear before the respondent/IncomeTax Officer, Ward-5, Income Tax Officer, DP Thottam, Puducherry(UT) -605003 on 06.03.2019 at 2:30 pm with all materials insupport of his claim. The assessment shall be completed withina period of two (2) weeks from the date of conclusion ofpersonal hearing. 11. Accordingly, Writ Petition is disposed of. No costs.Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrarmrn ToThe Income Tax Officer, Ward-5,Income Tax Officer, DP ThottamBehind Ananda Inn, MG RoadPuducherry (UT) - 605003.+1 cc to M.Kaviveerappan, Advocate, S.R.No.17168 W.P.No. 5367 of 2019 &WMP.Nos.6096 & 6097 of 2019RSK(CO)SSM(28/02/2019)