S.balasubramanian v. The Assistant Commissioner Of Income Tax, Coimbatore. Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.04.2022 CORAM : THE HONOURABLE MR.JUSTICE R.SURESH KUMAR Writ Petition No.9852 of 2022&W.M.P.Nos.9565 & 9568 of 2022 S.Balasubramanian ... Petitioner -Vs- 1. The Assistant Commissioner of Income Tax, Coimbatore. Coimbatore. 2. The Additional / Joint / Deputy / Assistant Commissioner of Income Tax, National Faceless Assessment Centre, New Delhi.... Respondents Prayer : Writ Petition filed under Article 226 of theConstitution of India praying for the issuance of a Writ ofCertiorary, calling for the records relating to the proceedingsin respect of assessment order of the 2nd Respondent dated29.03.2022 in respect of PAN No. AAT PB 8569J for the assessmentyear 2016-2017, the notice of demand of the 2nd Respondent inrespect of PAN No. AAT PB 8569J under section 156 of the IncomeTax 1961 for the assessment year 2016-2017 and the notice forpenalty dated 29.03.2022 of the 2nd Respondent for theassessment Year 2016 - 2017 and quash the same. For Petitioner : Mr.AR.L.Sundaresan, Senior Advocate for Mrs. A.L.Ganthimathi For Respondents: Mr.A.P.Srinivas, Senior Standing Counsel The prayer sought for herein is for a writ of Certiorari,calling for the records relating to the proceedings in respectof assessment order of the 2nd Respondent dated 29.03.2022 inrespect of PAN No. AAT PB 8569J for the assessment year 2016-2017, the notice of demand of the 2nd Respondent in respect ofPAN No. AAT PB 8569J under section 156 of the Income Tax 1961 https://hcservices.ecourts.gov.in/hcservices/ for the assessment year 2016-2017 and the notice for penaltydated 29.03.2022 of the 2nd Respondent for the assessment Year2016 - 2017 and quash the same. 2. In respect of assessment year 2016-17, in order to re-open the assessment under Section 147 of the Income Tax Act 1961(in short 'the Act'), notice under Section 148 was issued,thereafter the assessment proceedings went on. Ultimately, aftercompleting the assessment, before passing the final assessmentorder, as per the procedure contemplated, the Revenue issuedfinal show cause notice with draft assessment order on27.03.2022, whereby, the Revenue directed the petitionerassessee to respond through the registered E-filing Account by23.59 hours of 28.03.2022. 3. On receipt of such final show cause notice through E-Portal, the petitioner claims that, though the petitioner madean attempt to respond, the web portal could not be accessed bythe petitioner and in the mean while, the one day time also wasover and on 29.03.2022, the assessment order which is impugnedherein was passed. Therefore, challenging the said order on theground that, no proper opportunity was given to the petitionerto respond for the final show cause notice, the petitioner hasassailed the impugned order of assessment. 4. Mr.AR.L.Sundaresan, learned Senior counsel, madesubmissions in support of his contentions and would furthersubmit that, if a reasonable opportunity is given to thepetitioner assessee, certainly, the petitioner assessee would beable to respond to the final show cause notice and thereafter,the Revenue can proceed further and to pass orders in accordancewith law. 5. Heard Mr.A.P.Srinivas, learned Senior Standing Counselappearing for the respondent Revenue, who would submit that, itis not the first time notice was given on 27.03.2022, well inadvance notices were issued under 142 (1) of the Act and thepetitioner also had responded, the present notice dated27.03.2022 is only a draft assessment order. Therefore, if atall the petitioner wants to accept it, he will get the benefitforegoing the penalty to be finally imposed against him. Henceat this juncture, by raising the said ground that the one daytime given to the petitioner was not enough to respond, may notbe justifiable. Therefore, on that ground, the impugned ordercannot be successfully assailed by the petitioner, he contended. 5. Heard Mr.A.P.Srinivas, learned Senior Standing Counselappearing for the respondent Revenue, who would submit that, itis not the first time notice was given on 27.03.2022, well inadvance notices were issued under 142 (1) of the Act and thepetitioner also had responded, the present notice dated27.03.2022 is only a draft assessment order. Therefore, if atall the petitioner wants to accept it, he will get the benefitforegoing the penalty to be finally imposed against him. Henceat this juncture, by raising the said ground that the one daytime given to the petitioner was not enough to respond, may notbe justifiable. Therefore, on that ground, the impugned ordercannot be successfully assailed by the petitioner, he contended. 6. I have considered the said rival submissions made by thelearned counsel appearing for the parties and have perused thematerials placed before this Court. https://hcservices.ecourts.gov.in/hcservices/ 7. As has been pointed out by the learned Senior counselappearing for the petitioner, whether it is a final show causenotice or draft assessment order, it has been issued only on27.03.2022 after 21:57 hours and time was given to the assesseeonly up to 23:59 hours on 28.03.2022. First of all, thisshortest time given to the assessee may not be justifiable onthe part of the Revenue, as within the short time normally itcannot be expected from an assessee to respond. 8. Moreover, it is a complaint of the petitioner assesseethat within the time stipulated, even though attempt was made bythe assessee, he could not get access with the web portal andthis has been averred by the petitioner assessee in theaffidavit filed in support of this writ petition. 9. In view of these infirmities, as this can very well beconstrued as a violation of principles of natural justice, thisCourt is inclined to dispose of this writ petition with thefollowing orders : (i) That the impugned order is set aside, andthe matter is remitted back to the Revenue with adirection to give fresh final show cause notice tothe petitioner by giving two weeks time to respond.On receipt of such notice, it is open to thepetitioner assessee to respond and thereafter letthe Revenue proceed and pass orders of assessment inaccordance with law. It is made clear that insofar as the notice tobe further given is concerned, the notice dated27.03.2022 shall be treated as a fresh notice whichcan be responded by the assessee within two weeksfrom the date of receipt of copy of this order. 10. With these directions, this writ petition is disposedof. No costs. Consequently, connected miscellaneous petitionsare closed. Sd/-Deputy Registrar(CS) //True copy// Sub Assistant Registrar sha/sgl To 1. The Assistant Commissioner of Income Tax, Coimbatore. Coimbatore. 2. The Additional / Joint / Deputy / Assistant Commissioner of Income Tax, National Faceless Assessment Centre, New Delhi. National Faceless Assessment Centre, New Delhi. +1cc to Mrs.A.L.Ganthimathi, Advocate SR.No.28204 +1cc to Mr.A.P.Srinivas, Advocate SR.No.28069 W.P.No.9852 of 2022 & W.M.P.Nos.9565 & 9568 of 2022 RSV(CO)GMY(12/05/2022)