Wa/1031/2022 Of Shanavas M v. The Additional/Joint/Deputy /Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 23 DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944 WA NO. 1031 OF 2022 WP(C) 14803/2022 OF HIGH COURT OF KERALA APPELLANT/S: SHANAVAS M.AGED 46 YEARSS/O.HAMSA, BROTHERS AUTOS, CITY CENTRE, CHANTHAKUNNU, NILAMBUR, MALAPPURAM DISTRICT, PIN -679 329.BY ADV O.D.SIVADAS RESPONDENT/S: 1THE ADDITIONAL/JOINT/DEPUTY /ASSISTANT COMMISSIONER OF INCOME TAXTHE NATIONAL FACELESS ASSESSMENT CENTRE, DELHI, PIN - 110 054.2THE INCOME TAX OFFICERTIRUR, MALAPPURAM DISTRICT, PIN - 676 101.BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON23.09.2022, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: WA.1031/2022 -2- S.V.BHATTI & BASANT BALAJI, JJ. - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - WA NO. 1031 OF 2022 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - JUDGMENT (Dated this the 23[rd] day of September 2022) Basant Balaji J., The appellant has filed this appeal aggrieved by the judgment in W.P.(C)No.14803 of 2022, whereby the WritPetition was dismissed. 2. The said Writ Petition was filed to call for records leading to Ext.No.P9 and P10 orders and to quash thesame. 3. The appellant, is the proprietor of M/s.BrothersAutos. For the assessment year 2015-16 he could not file WA.1031/2022 -3- the income tax returns in time. A notice under Section 148 of the Income Tax Act (for short 'the Act') was served on1.4.2021. Immediately he submitted returns on 21.4.2021. Thereafter, a notice under Section 142(3) of the Act wasreceived by the appellant on 25.11.2021 seeking the detailsof cash deposit during the subject assessment year. Thoughthe appellant submitted a reply, another notice dated2.12.2021 was received by him under Section 142(1) of theAct directing to submit the details regarding the accountsand documents specified in the Annexure to the notice. 4. A second notice under Section 142(1) of the Act was issued to the appellant on 9.2.2022. In the said notice also the appellant was directed to furnish source of cashdeposit for the assessment year and also the cash flow WA.1031/2022 -4- statement. The appellant filed a reply on 15.2.2022 explaining the source of cash deposit and the cash flowstatement. On 26.3.2022 Ext.P7 show cause notice was issued by the first respondent through online to theappellant. In Ext.P7 it was stated that the response shouldbe filed before 23.59 hrs of 28.3.2022. 5. It is the case of the appellant that he has received the notice only on 26.3.2022 at 10.50 am and he wasdirected to submit a reply before 28.3.2022 and 27.3.2022 was being a Sunday, it was practically impossible for him to submit the reply within such a short time. The appellantfiled Ext.P8 reply to the show cause notice dated 26.3.2022on 28.3.2022 itself, in which it was requested to provide some more time to elaborate the genuineness of the WA.1031/2022 -5- supporting documents. The respondents thereafter, issued Ext.P9 assessment order assessing a total income of the appellant as Rs.2,16,08,650/- and assessed the tax for theassessment year as Rs.1,81,47,383/- A demand notice wasalso issued pursuant to Ext.P9. The appellant challengedthe assessment order as well as the demand notice beforethis court under Article 226 of the Constitution of India inthe Writ Petition. 6. The learned Single Judge noticed that though only two days time was given for filing the reply, the appellant has in fact filed his reply within the time granted by theauthorities on 28.3.2022 itself and hence, the appellantcannot complain of violation of the principles of naturaljustice as he has utilized the limited opportunity granted to WA.1031/2022 -6- WA.1031/2022 -5- supporting documents. The respondents thereafter, issued Ext.P9 assessment order assessing a total income of the appellant as Rs.2,16,08,650/- and assessed the tax for theassessment year as Rs.1,81,47,383/- A demand notice wasalso issued pursuant to Ext.P9. The appellant challengedthe assessment order as well as the demand notice beforethis court under Article 226 of the Constitution of India inthe Writ Petition. 6. The learned Single Judge noticed that though only two days time was given for filing the reply, the appellant has in fact filed his reply within the time granted by theauthorities on 28.3.2022 itself and hence, the appellantcannot complain of violation of the principles of naturaljustice as he has utilized the limited opportunity granted to WA.1031/2022 -6- him. The learned Single Judge, thereafter, went on to holdthat the appellant has got a remedy to challenge the orderbefore the appellate authority and since the Writ Petitionhas been pending on the files of the court from 26.4.2022the period spent by the appellant pursuant to the litigationfrom 24.6.2022 till the date of receipt of the judgmentstands excluded while calculating the limitation period forpreferring statutory appeal and dismissed the Writ Petition. 7. On going through the facts and circumstances of the case, though we are in full agreement with the findingrecorded by the learned Single Judge as the appellant hasavailed of the opportunity to file reply to the show causenotice. The appellant cannot complain that there isviolation of principles of natural justice. But taking into WA.1031/2022 -7- consideration of all facts and circumstances of the case and the short time by which the appellant had to file reply, wedeem it appropriate to grant sufficient time to the appellantherein to work out the remedy of the appeal. The appellantis given liberty to file an appeal on or before 17.10.2022 byenclosing a copy of this judgment. In the meanwhile, allcoercive steps pursuant to Ext.P9 and P10 shall be kept inabeyance. With these observations, the Writ Appeal is dismissed. Sd/-S.V.BHATTI, JUDGE sd/- BASANT BALAJI, JUDGE