The South Point Education Society & Anr v. Chief Commissioner Of Income Tax, Kolkata-Iii & Ors

OD 39 ORDER SHEET WPO 179 of 2011IN THE HIGH COURT AT CALCUTTACONSTITUTIONAL WRIT JURISDICTIONORIGINAL SIDE THE SOUTH POINT EDUCATION SOCIETY & ANR Vs. CHIEF COMMISSIONER OF INCOME TAX, KOLKATA-III & ORS. BEFORE: The Hon’ble JUSTICE MD. NIZAMUDDINDate : 3[rd] February, 2022(Via Video Conference) Mr. Agnibesh Sengupta, Adv. Mr. Manabendranath Bandyopadhyay, Advs. …for the respondents The Court: Heard learned advocates appearing for the parties. In this writ petition, petitioner has challenged the impugnedorder dated 28/29[th] January, 2010 rejecting the application of thepetitioner for grant of exemption under Section 10(23C)(xi) which waspassed on the basis of the show cause notice dated 22[nd] January,2010 against which petitioner had made an objection on 27[th] January,2010 which appears at page 182 of the writ petition. On perusal of the impugned order, on the face of it, it appearsthat the impugned order is non-speaking and there is no discussion and consideration on the objection of the petitioner raised against theimpugned show cause notice dated 22[nd] January, 2010 and there isjust one line in the impugned order that the written submission of thepetitioner was considered and rejected. Learned advocate appearing for the respondents have filedaffidavit-in-opposition and Mr. Khaitan, learned senior advocateappearing for the petitioner points out paragraph 3(iv) and paragraphs6, 7, 10 and 11 of the affidavit and contends that respondentsthemselves have admitted that there is no objection about investmentsin question made in mutual funds on the ground of which petitioner’sapplication for exemption was rejected. Mr. Khaitan, learned senioradvocate appearing for the petitioner in support of his contentionrelies on a circular dated 27[th] October, 2010 which appears at page189 of the writ petition. Considering the submissions of the parties and on perusal ofrelevant records, I am of the view that the impugned order dated28/29[th] January, 2010 is not sustainable in law in view of the factwhich appears from the impugned order itself that impugned orderdoes not reflect at all consideration of the objections/points raised bythe petitioner in its written submission against the impugned showcause notice and on this ground alone the impugned order is set asideand is remanded to the authority concerned to reconsider and pass afresh order in accordance with law and by passing a reasoned andspeaking order and after giving opportunity of hearing to the petitioneror its authorised representative within eight weeks from the date of communication of this order. At the time of hearing before theauthority concerned, the petitioner shall be entitled to take all thepoints which has been taken in its writ petition and also shall be ableto rely on the affidavit-in-opposition filed by the respondents in thiswrit petition on 3[rd] July, 2019. With these observations and directions, this writ petition beingWPO 179 of 2011 is disposed of. TR/ (MD. NIZAMUDDIN, J.)