The Honourable Mr. Justice S.m.subramaniamw.p v. Income Tax Officer, Ward Xv(1), Aaykar Bhavan

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.07.2021CORAM THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAMW.P.No.28817 of 2010and M.P.No.2 of 2010S.Aftab Ahamed..Petitioner Vs. 1.Income Tax Officer, Ward XV(1), Aaykar Bhavan, 121, MG Road, Chennai 34. 2.Commissioner of Income Tax, Chennai – X, Aaykar Bhavan, 121, MG Road, Chennai – 34...Respondents Prayer: Writ Petition filed under Article 226 of theConstitution of India, to issue a Writ of CertiorarifiedMandamus, calling for the records of the 2[nd] respondent in hisproceedings C.No.10114/2/CIT-X/2009-10 dated 31.03.2010 and theorder of the First Respondent dated 18.09.2008 and quash thesame and direct the 1[st] respondent to pass fresh order underSection 143(3) of the Income Tax Act, 1961. For Petitioner : Mr.S.Sathiyanarayanan For Respondents : Mr.D.Prabhu Mukunth Arunkumar (Standing Counsel for Income Tax) ORDER The order passed by the 2[nd] respondent under Section 264 ofthe Income Tax Act, 1961 (hereinafter referred to as, 'the Act')in proceedings dated 31.03.2010, is under challenge in thepresent Writ Petition. 2.The petitioner has assessed to Income Tax for about 20years and in respect of the present Writ Petition, thepetitioner states that he filed his Return of Income for the https://hcservices.ecourts.gov.in/hcservices/ Assessment Year 2006-07. Section 143(1) Intimation was processedon 06.09.2007 and the Return of Income was accepted by issuing anil demand. 3.The Assessing Officer passed an assessment order on18.09.2008, stating that construction of two flats bearing DoorNos.23C/4D and 23C/4B at Dr. B. N. Salai (North Boag Road),T.Nagar, Chennai was completed only in the Financial Year 1997-98, which is factually not correct. The petitioner states thatthe physical possession of the Flats was handed over to theassessee in the year 1995 itself. The learned counsel for thepetitioner reiterated that in the Return of Income filed for theAssessment Year 1996-97, the petitioner has categorically statedregarding the monthly rents collected from the said Flats. Thesaid informations would reveal that the constructions had beencompleted in the year 1995 itself. While so, based on theincorrect factual details, the 2[nd] respondent passed the impugnedorder under Section 264 of the Act. 4.The learned Standing Counsel appearing on behalf of therespondents disputed the said contentions by stating that thepetitioner/assessee had not submitted any document to establishthat construction of the Flats completed in all respects, in theyear 1995. The facts and the admissions made by the petitionerwould reveal that the construction of Flats was completed in theyear 1997. The agreement itself was signed on 03.02.1996.Therefore, it may not be possible to state that the constructionof the Flats was completed and the petitioner occupied the saidFlats on 10.11.1995. The petitioner submitted his RevisionPetition before the 2[nd] respondent under Section 264 of the Act.The petitioner himself has stated that he has no documents toestablish the same. However, the learned counsel for thepetitioner opposed the same by stating that the petitioner ispossessing document to establish that the construction was overduring the year 1995. 5.Such disputed facts between the parties regarding thecompletion of construction of Flats cannot be adjudicated in aWrit Petition, with reference to the documents and evidences.When there is a contradiction with reference to the facts, thematter is to be remanded back for enquiry and decide the issuesbased on the documents. In the present case, the petitionerstates that the construction of Flats was completed in allrespects and he had taken possession in the year 1995 and hecollected rent and the said facts are available in the Return ofIncome for the Assessment Year 1996-97. Per contra, therespondents state that the agreement for sale itself was of theyear 1996 and therefore, there is no possibility to say that theconstruction was completed in the year 1995. In view of thecontradictory statement, this Court thought fit to remand the matter back for fresh consideration, which is to be done withreference to the documents and evidences which all are to beproduced by the petitioner to establish their case. Accordingly,the impugned order passed by the 2[nd] respondent in proceedingsC.No.10114/2/CIT-X/2009-10 dated 31.03.2010 is quashed and thematter is remanded back to the 2[nd] respondent for a freshconsideration. The petitioner is at liberty to submit hisdocuments, evidences and defence statement, if any, within aperiod of four weeks from the date of receipt of a copy of thisorder and on receipt of any such objections or defencestatements, the 2[nd] respondent is directed to provide opportunityto the writ petitioner to defend their case and pass orders, onmerits and in accordance with law, as expeditiously as possible,preferably within a period of three months thereafter. 6.With these directions, the Writ Petition stands allowed.No costs. Consequently, connected Miscellaneous Petition isclosed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar gsa To1.Income Tax Officer, Ward XV(1), Aaykar Bhavan, 121, MG Road, Chennai 34.2.Commissioner of Income Tax, Chennai – X, Aaykar Bhavan, 121, MG Road, Chennai – 34. +1cc to Mr.Hema Murali Krishnan, Advocate, S.R.No.31865 W.P.No.28817 of 2010 BS(CO)SB(03/08/2021)