Wp/10045/2022 Of G.ravisankar v. Income Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.04.2022CORAM : THE HONOURABLE MR.JUSTICE R.SURESH KUMAR Writ Petition Nos.10045 & 10049 of 2022andW.M.P.Nos.9749, 9750, 9754 & 9755 of 2022 G.RavisankarS/o.Govindarajalu ...Petitioner in both W.Ps. Income Tax Officer,Income Tax Department,Office of the Income Tax Officer,Non Corp Ward 19(6) Chennai,No.121, Mahatma Gandhi Road,Nungambakkam, Chennai – 600 034. ...Respondent in both W.Ps. Common Prayer: Writ Petition filed under Section 226 of theConstitution of India, praying for the issuance of a Writ ofCertiorari, calling for the records of the impugned Order in DIN&NoticeNo.ITBA/AST/F/148A/2021-22/1043240166(1)&No.ITBA/AST/F/ 148-1/2021-22/1042356112(1) dated 31.03.2022 forAssessment Year 2015-2016 from the files of the respondentherein, quash the same. The issue raised in these writ petitions are interconnectedand common, therefore with the consent of learned counselappearing on both sides, these writ petitions were heardtogether and are disposed of by this common order. 2. That in respect of Assessment Year 2015-2016, the Revenuewas in believe that there was an escaped assessment of taxagainst the assessee, therefore in order to issue notice underSection 148 of the Income Tax Act, 1961 [in short, “the Act”] inorder to comply with the provisions as contemplated under https://hcservices.ecourts.gov.in/hcservices/ Section 148A of the Act, issued a notice on 17.03.2022 givingtime upto 21.03.2022 to the petitioner/assessee to respond. 3. The said notice, though was claimed by the Revenue thathas been sent through E-governance, it is a stand of theassessee that he had not received through E-governance. However,the same notice dated 17.03.2022 was served on the petitioner byRPAD on 24.03.2022. 4. On receipt of the said notice as stated above, thepetitioner/assessee had sent a communication on 25.03.2022stating that since the petitioner/assessee was out of station atthat time, he needed two weeks time to respond with supportingdocuments. 5. The said request made by the petitioner/assessee was sentto the Assessing Officer through RPAD, which also was receivedand acknowledged by the Assessing Officer on 26.03.2022. 6. However, the Assessing Officer had proceeded to completethe enquiry and passing orders under Section 148A of the Act. Bythus, an order has been passed on 31.03.2022 deciding thatnotice under Section 148A of the Act can be issued to theassessee. The said order passed under Section 148A of the Actdeciding to issue notice under Section 148, dated 31.03.2022 isunder Challenge in W.P.No.10045 of 2022. 7. As a sequel, on the same date i.e., 31.03.2022 noticeunder Section 148 was issued by the Revenue to the assessee,that is under challenge in W.P.No.10049 of 2022. 8. Assailing the said order in the first writ petition i.e.,order passed under Section 148A of the Act, Mrs.AparnaNandakumar, learned counsel for the petitioner pointed out that,though it was claimed by the Revenue that the notice dated17.03.2022 was sent through E-governance, the petitioner has notreceived it and he only received it through Registered post,which he has received on 24.03.2022, immediately he had sent acommunication on 25.03.2022 requesting the Revenue to give twomore weeks time to respond. 9. Though the said request having been received by theAssessing Authority on 26.03.2022 itself, on 31.03.2022 theypassed the impugned order, wherein it has been stated that theassessee did not file any reply even though notice was servedthrough E-mail to the petitioner/assessee. Therefore, therequest made by the petitioner/assessee seeking further time oftwo weeks had not at all been considered and it has been statedin the impugned order that, as if the petitioner has not filedany reply. Hence, the learned counsel submits that, it is a 9. Though the said request having been received by theAssessing Authority on 26.03.2022 itself, on 31.03.2022 theypassed the impugned order, wherein it has been stated that theassessee did not file any reply even though notice was servedthrough E-mail to the petitioner/assessee. Therefore, therequest made by the petitioner/assessee seeking further time oftwo weeks had not at all been considered and it has been statedin the impugned order that, as if the petitioner has not filedany reply. Hence, the learned counsel submits that, it is a violation of the principles of natural justice therefore on thatground, the impugned order is vitiated. 10. However, Mrs.Hema Muralikrishnan, learned SeniorStanding Counsel appearing for the respondent/Revenue wouldsubmit that, insofar as sending a notice to an assessee oneither mode i.e., by E-governance or by RPAD or by personalservice that can be adopted and it is possible under theprovisions of the Act. However, insofar as the reply to be madeby the assessee in response to the notice issued by the Revenueis concerned, that shall be made only by E-governance i.e.,through E-portal of the Department, which alone could be reliedupon by the Assessing Authority before finalizing any decision,therefore the request letter claimed to have been made by thepetitioner/assessee seeking two weeks further time dated25.03.2022 since admittedly has been made only through RPAD, thesame could not have reached the Appellate Authority or if itcould have been reached, the same could not have been reliedupon by the Appellate Authority before passing any orderinvoking Section 148A of the Act, that is how the presentimpugned order has been passed. Therefore, in this context, itcannot be blamed that the procedure in principle of naturaljustice is violated in this case. In view of the same, theimpugned order is sustained, she contended. 11. I have considered the said submissions made by thelearned counsel appearing for both sides and have perused thematerials placed before this Court. 12. There is one infirmity, which was pointed out by thelearned counsel appearing for the petitioner that, noticereceived by the petitioner on 24.03.2022 was responded by letterdated 25.03.2022 requesting two weeks time and the said requestwas reached the respondent Assessing Authority, who signed thepostal acknowledgment, which has been filed in the typed-set ofpapers, despite this, Assessing Authority has taken a stand thatreply has not been sent by the petitioner/assessee. 13. In this context, even though the learned StandingCounsel has taken a stand that whatever the reply given orrequest made by the assessee that should be made only by E-governance and all other mode of sending reply would be ignoredor would not be taken into account by the Revenue is concerned,this Court feel that, once a communication is sent by anyassessee to the Revenue that too by registered post withacknowledgment due, the due consideration is always expected tobe given by the addressee, without which, if such kind of replyor documents or inputs received from the assessee or any one isignored on the only ground that it has not been sent through e-portal, certainly it would amount to violation of principle of natural justice. Therefore on that ground, these impugned ordersare liable to be interfered with. 14. That apart, Sub-Section (b) of Section 148 makes itclear that while serving a notice on the assessee to show cause,even such time may be specified in the notice being not lessthan 7 days and not exceeding 30 days from the date on which thesaid notice is issued. Therefore, sub-Section(b) of Section 148contemplates that, a minimum of 7 days notice must be given. natural justice. Therefore on that ground, these impugned ordersare liable to be interfered with. 14. That apart, Sub-Section (b) of Section 148 makes itclear that while serving a notice on the assessee to show cause,even such time may be specified in the notice being not lessthan 7 days and not exceeding 30 days from the date on which thesaid notice is issued. Therefore, sub-Section(b) of Section 148contemplates that, a minimum of 7 days notice must be given. 15. Herein a case in hand, notice dated 17.03.2022 wasissued giving time upto 21.03.2022 therefore, the minimum 7 dayssince has not been given in this case, on that ground alsoconsequential proceedings, which is impugned herein is vitiatedand it can be interfered with. 16. In that view of the matter, this Court is inclined todispose of these writ petitions with the following orders: That the impugned order in W.P.No.10045 of 2022 is herebyset aside. As a sequel, the impugned order in W.P.No.10049of 2022 is also set aside and the matter is remitted back tothe respondent. While redoing the exercise, it is open tothe respondent to issue a notice afresh under Section 148Bgiving not less than 7days to the petitioner/assessee torespond and on receipt of the same, the petitioner shallrespond by giving their reply or inputs within the timestipulated therein. That the impugned order in W.P.No.10045 of 2022 is herebyset aside. As a sequel, the impugned order in W.P.No.10049of 2022 is also set aside and the matter is remitted back tothe respondent. While redoing the exercise, it is open tothe respondent to issue a notice afresh under Section 148Bgiving not less than 7days to the petitioner/assessee torespond and on receipt of the same, the petitioner shallrespond by giving their reply or inputs within the timestipulated therein. In this regard, it is made clear that as far as possible,the assessee, since the E-governance is in practice, has togive his reply only through E-governance. Therefore, thedefence that it has been sent only through registered postmay not be taken in this case in future. In this regard, it is made clear that as far as possible,the assessee, since the E-governance is in practice, has togive his reply only through E-governance. Therefore, thedefence that it has been sent only through registered postmay not be taken in this case in future. With these observations and directions, both the writpetitions are disposed of accordingly. No costs. Connectedmiscellaneous petitions are closed. s/d- Assistant Registrar True Copy Sub-Assistant Registrar mp https://hcservices.ecourts.gov.in/hcservices/ ToThe Income Tax Officer,Income Tax Department,Office of the Income Tax Officer,Non Corp Ward 19(6) Chennai,No.121, Mahatma Gandhi Road,Nungambakkam, Chennai – 600 034. +1 CC to M/s. Aparna Nandakumar, Advocate sr 27461+1 CC to M/s. Hema Muralikrishnan, Advocate sr 27452. W.P.Nos.10045 & 10049 of 2022 RP(CO)SP(26/04/2022)