The Honourable Mr.justice R.suresh Kumar v. Https://Hcservices.ecourts.gov.in/Hcservices

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM : THE HONOURABLE MR.JUSTICE R.SURESH KUMAR Writ Petition No.9315 of 2022and W.M.P.No.9073 of 2022 M.Parkunan….Petitioner -Vs- Income Tax OfficerWard 2 PondicherryOffice of the Income Tax Officer Ward-02No.380, 2[nd] Floor, Kanniah Business CentrePondicherry – 605 001.….Respondent Prayer : Writ Petition under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorari to callfor the impugned proceedings of the respondent inP.A.No.BBYPP4498K dated 26.12.2018 for the assessment year 2011-2012 and the impugned consequential Notice of demand issued forthe assessment year 2011-2012 in PAN dated 26.12.2018and quash both the proceedings as barred by limitation and alsopassed without issuing any notice to the petitioner and grantingan opportunity as contemplated under the provisions of theIncome Tax Act 1961. For Respondents: Mr.A.N.R.Jayapratap, Junior Standing Counsel The prayer sought for herein is for a Writ of Certiorari tocall for the impugned proceedings of the respondent inP.A.No.BBYPP4498K dated 26.12.2018 for the assessment year 2011-2012 and the impugned consequential Notice of demand issued forthe assessment year 2011-2012 in PAN dated 26.12.2018and quash both the proceedings as barred by limitation and alsopassed without issuing any notice to the petitioner and grantingan opportunity as contemplated under the provisions of theIncome Tax Act 1961. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is an assessee under the Income Tax Act,1961 (In short 'the Act'). In respect of the assessment year2011-12, in order to reopen the assessment under Section 147 ofthe Act, a notice under Section 148 of the Act was issued on20.03.2018. The said notice has been sent to the address givenby the petitioner at D.No.208, 1[st] Floor, Opp.to Hotel GRTSunway, 100 Feet Road, Pondicherry-4. However, the same wasreturned unserved with the postal endorsement 'addressee notknown'. 3. Therefore, the Revenue again sent a notice dated25.10.2018 to his address at Mettu Street, Thattankuttai,Thippasamuthram Village, Villupuram as appearing in ITS detailswhich also has been returned with the postal endorsement 'nosuch addressee'.Thereafter, the Revenue proceeded to finalizethe assessment and assessment order dated 26.12.2018 has beenpassed. Challenging the said assessment order this writpetition has been filed. 4. Heard Mr.P.Rajkumar, learned counsel for the petitioner,who pointed out that the notice dated 20.03.2018 has been sentto the address, which according to him is a wrong address of theassessee, as the petitioner had vacated that address long backand had given a new address at Villupuram at the time of filingthe earlier returns. In the said address, the petitioner wascontinuously residing, notice has not been served on thepetitioner assessee at Villupuram also. Therefore, according tohim there was no notice served on the petitioner and thereforethe assessment could not have been proceeded and the Revenuecould not have passed the impugned order dated 26.12.2018. 5. That apart the learned counsel would point out that, eventhough the first notice dated 20.03.2018 was within thelimitation period, it was sent to a wrong address.Subsequently, the notice dated 25.10.2018 was beyond thelimitation period. Therefore on that ground of limitation also,the assessment made under Section 147 of the Act is vitiated.At any rate, the present impugned order ie., the assessmentorder under Section 147 read with Section 144 of the Act dated26.12.2018 is infirm and therefore on that ground the impugnedorder is to be set aside, he contended. 5. That apart the learned counsel would point out that, eventhough the first notice dated 20.03.2018 was within thelimitation period, it was sent to a wrong address.Subsequently, the notice dated 25.10.2018 was beyond thelimitation period. Therefore on that ground of limitation also,the assessment made under Section 147 of the Act is vitiated.At any rate, the present impugned order ie., the assessmentorder under Section 147 read with Section 144 of the Act dated26.12.2018 is infirm and therefore on that ground the impugnedorder is to be set aside, he contended. 6. However, Mr.A.N.R.Jayapratap, learned Junior StandingCounsel appearing for the respondent Revenue submitted that, theaddress given by the petitioner was a correct address.Therefore, the earlier notice which was sent to Pondicherryaddress since has been returned as there was no such addressee,the notice was again sent to Villupuram address, which addresswas obtained from the Bank viz., Pallavan Grama Bank, Omandurwhere the statement of details had been called for by the https://hcservices.ecourts.gov.in/hcservices/ Revenue under Section 133(6) of the Act, where it has also beenrevealed that in the petitioner's account at the bank, a cashdeposit totaling to Rs.57,90,271/- was made. Despite this hugesum of cash deposit having been made in the bank account of thepetitioner assessee during the relevant year ie., assessmentyear 2011-12, no return has been submitted or filed by thepetitioner assessee. Therefore, it is a clear suppression andthe petitioner assessee has not truly and fully disclosed theincome. Therefore, it necessitated the Revenue to invokeSection 147 of the Act by invoking the provisions of Section148. Hence, the impugned assessment order dated 26.12.2018 isto be sustained, he contended. 7. Learned Standing Counsel for the Revenue would also pointout that, as against the assessment order though appeal remedyis very much available, no such appeal has been filed by theassessee and here also this writ petition has been filed onlyafter four years of the assessment order dated 26.12.2018.Therefore, on the ground of laches also this writ petition isliable to be rejected, he contended. 8. I have considered the rival submissions made by thelearned counsel on either side and have perused the materialsplaced on record. 9. First of all, the notice dated 20.03.2018 sent to thePondicherry address has been returned as there was no suchaddressee and therefore the second notice was sent to theVillupuram address. Insofar as the Villupuram address isconcerned, it is an admitted fact that the petitioner wasresiding in the Villupuram address alone. When such being theposition, there could not have been a chance for the postalauthorities to report that there is no such addressee in thataddress. 10. Therefore, in this context this Court taking judicialnotice that the petitioner assessee might have managed to sendback the notice sent by the Revenue to the Villupuram address ofthe assessee by making a postal endorsement that no suchaddressee is available in the said address despite the fact thatthe petitioner assessee continued to reside in the said address. 11. Moreover it is also to be noted that, though thepetitioner received the cash deposit of Rs.57,90,271/- duringthe previous year relevant to the assessment year 2011-12, noreturn has been filed under Section 139 of the Act and for non-filing of the return, no plausible reason has been given by thepetitioner. 10. Therefore, in this context this Court taking judicialnotice that the petitioner assessee might have managed to sendback the notice sent by the Revenue to the Villupuram address ofthe assessee by making a postal endorsement that no suchaddressee is available in the said address despite the fact thatthe petitioner assessee continued to reside in the said address. 11. Moreover it is also to be noted that, though thepetitioner received the cash deposit of Rs.57,90,271/- duringthe previous year relevant to the assessment year 2011-12, noreturn has been filed under Section 139 of the Act and for non-filing of the return, no plausible reason has been given by thepetitioner. 12. These factors would coherently go to show that, thepetitioner willfully suppressed and did not fully and trulydisclose the tax liability of the petitioner. Therefore, itcomes under the fourth category of the proviso to Section 147.Therefore, the limitation could be extended and hence theassessment order dated 26.12.2018 which is impugned hereinpassed by the Revenue cannot be assailed successfully on thesaid ground of limitation as well as notice not served on thepetitioner assessee. 13. Moreover, as stated by the learned Standing Counselappearing for the Revenue the impugned order is dated 26.12.2018and the writ petition has been filed only in 2022. There is noplausible reason as to the delay in filing the writ petition.Therefore, on the ground of laches also this writ petition isliable to be rejected. If at all the petitioner has got anygrievance on the merits of the impugned order dated 26.12.2018,the petitioner assessee can very well prefer an appeal beforethe Commissioner (Appeals), which attempt the petitionerassessee has not made. Therefore, on that ground also the writpetition is liable to be rejected. 14. Therefore, for all the above reasons this writ petitionis to be rejected. Accordingly, the writ petition is dismissed.No costs. Consequently, connected miscellaneous petition isalso dismissed. Sd/-Assistant Registrar(CS-II) //True copy// KST Sub Assistant Registrar To Income Tax OfficerWard 2 PondicherryOffice of the Income Tax Officer Ward-02No.380, 2[nd] Floor, Kanniah Business Centre,Pondicherry – 605 001. +1cc to Mr.P.Rajkumar, Advocate SR.No.26287+1cc to Mr.A.P.Srinivas, Advocate SR.No.26620 SKM(CO)GMY(01/07/2022)