Wp(C) v. Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 21 DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945 WP(C) NO. 30276 OF 2023 PETITIONER: C. PRASANNAKUMARAN UNNITHAN,AGED 64 YEARS, S/O. N. CHANDRASEKHARA PILLAI, PROPRIETOR C.B. ELECTRICALS, NEAR PARA JUNCTION, NOORANAD, KERALA, PIN – 690504. BY ADVS. SRI. ASWIN GOPAKUMAR SRI. ANWIN GOPAKUMAR SMT. SARANYA BABU SMT. ADITYA VENUGOPALAN SMT. NIKITHA SUSAN PAULSON SRI. MAHESH CHANDRAN SMT. SHALLET K. SAM RESPONDENTS: 1COMMISSIONER OF INCOME TAX (APPEALS)OFFICE OF THE COMMISSIONER OF INCOME TAX, LAL BAHADUR SASTHRI ROAD, PUBLIC LIBRARY BUILDING, KOTTAYAM, PIN – 686001.2THE ASSISTANT COMMISSIONER OF INCOME TAX, UNIT – 3, COIMBATORE, NO.63, RACECOURSE ROAD,COIMBATORE, TAMIL NADU, PIN – 641 018.BY ADV. SRI. JOSE JOSEPH – SC – IT LAL BAHADUR SASTHRI ROAD, PUBLIC LIBRARY BUILDING, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) Nos.30276 of 2023 ------------------------- Dated this the 21[st] day of September, 2023 JUDGMENT 1.Heard Mr. Aswin Gopakumar, Learned Counsel for thepetitioner and Mr. Jose Joseph, Learned Standing Counsel for therespondents. Heard Mr. Aswin Gopakumar, Learned Counsel for the 2.The present writ petition under Article 226 of theConstitution of India has been filed impugning the order onappeal under Section 250 of the Income Tax Act, passed by theNational Faceless Appeal Centre, Delhi (hereinafter referred to as‘NFAC’ for short) on 23.08.2023 which is instituted against theorder dated 16.12.2019 passed by the assessing authority inrespect of the assessment year 2017-18. The appeal wasinstituted on 09.01.2020. The appeal remained pending. In themeantime, the Government notifies the Facelss Appeal Scheme,2021 and this appeal was also taken up by the NFAC for decision.The petitioner was issued Exhibit P-4 notice on 20.07.2023 askinghim to submit his written submissions in support of each groundsof appeal along with supporting documentary evidence and documents as specified in the attached annexure. The petitionerwas given time till 31.07.2023 for affording the writtensubmissions and supporting documentary evidences in responseto Exhibit P-4 notice in the appeal. The petitioner on 31.07.2013itself requested for time till 15.08.2023 for filing writtensubmissions and supporting documentary evidence. This requestwas kept open and second notice Exhibit P-6 dated 10.08.2023was issued to the petitioner giving him time till 18.08.2023 forfurnishing written submissions and documentary evidences with awarning that, if no submissions/information/documents are notreceived within the stipulated time period, it will be presumedthat the petitioner has nothing to say in this matter and theDepartment will proceed ahead based on the material available onrecord. After second notice was issued, there was no response tothe Exhibit P-5 request dated 31.07.2023. 3.It appears that the petitioner on 18.08.2023 i.e., the last dateas per Exhibit P-6 notice for furnishing the written submissionsand documentary evidence in support made a request foradjourning the hearing to 02.09.2023. The appellate authoritywithout granting time as requested by the petitioner, passed theimpugned Exhibit P-8 order on merits. 3.It appears that the petitioner on 18.08.2023 i.e., the last dateas per Exhibit P-6 notice for furnishing the written submissionsand documentary evidence in support made a request foradjourning the hearing to 02.09.2023. The appellate authoritywithout granting time as requested by the petitioner, passed theimpugned Exhibit P-8 order on merits. 4.Learned Counsel for the petitioner submits that the appealremains pending for almost three years before the appellateauthority. After three years it was taken up for hearing and thepetitioner was issued first notice Exhibit P-4 dated 20.07.2023 inwhich the petitioner requested for fifteen days i.e. up to15.08.2023 for furnishing the written submissions anddocumentary evidences. No decision was communicated on thesaid request of the petitioner and the second notice Exhibit P-6dated 10.08.2023 was issued to the petitioner asking him toupload the written submissions and documentary evidence by18.08.2023. On 18.08.2023, the petitioner requested time till02.09.2023 and without passing any order on the said request, in ahurry-burry, the appellate authority had passed the order inviolation of the principles of natural justice. Learned Counsel forthe petitioner placed reliance on the Judgment of the SupremeCourt in MS Radha Krishan Industries Vs State of HimachalPradesh (Civil Appeal No. 1155 of 2021 dated 20.04.2021) tosubmit that the availability of statutory alternative remedy is not acomplete bar for entertaining a writ petition by the High Court ifthere has been violation of principles of natural justice or itinvolves the violation of fundamental rights of the writ petitioner. He, therefore, submits that the impugned order Exhibit P-8 passedby the appellate authority may be set aside and the petitioner begranted a last opportunity to upload his written submissions anddocumentary evidences for passing a fresh order by the appellateauthority. 5.Mr. Jose Joseph, Learned Standing Counsel for therespondents has, however, submitted that the petitioner wasgranted enough opportunity to upload his written submissions anddocumentary evidences in support. The first notice Exhibit P-4dated 20.07.2023 issued providing time to the petitioner till31.07.2023 for furnishing the written submissions anddocumentary evidence, which he failed and on last date i.e. on31.07.2023 he made a request for fifteen days further time forfurnishing written submissions and supporting documentaryevidence. The petitioner did not upload the documents andwritten submissions even within the time asked by him and in factthe time has extended till 18.08.2023 vide Exhibit P-6 dated10.08.2023. On 18.08.2023 i.e. on the last date of Exhibit P-6notice petitioner again made a request to extend the stipulatedtime vide Exhibit P-6 till 02.09.2023. 6.Learned Standing Counsel for the respondents furthersubmits that the petitioner cannot be allowed to seek time againand again for uploading written submissions and documentaryevidence in support thereof. A person who despite notice doesnot respond to the said notice cannot complain about the violationof the principles of natural justice. Mr. Jose Joseph furthersubmits that in the present case there has been no violation of theprinciples of natural justice. There is remedy of appeal underSection 253 before the Income Tax Appellate Tribunal provided tothe assessee for filing second appeal against the order passed bythe first appellate authority and the petitioner can raise allgrounds and produce all documents which are in his possession insupport of this case. He further submits that the appellateauthority has passed the order on merits and it has not summarilydismissed the appeal, and therefore, this Court may not entertainthe writ petition and should relegate the petitioner to thealternate remedy of second appeal before the Income TaxAppellate Tribunal under Section 253 of the Income Tax Act. 7.I have considered the submissions advanced on behalf of thepetitioner as well as Mr. Jose Joseph for the respondents. 8.It is true that the appeal filed by the petitioner remainedpending for almost three years for hearing by the NFAC and thepetitioner was issued first notice Exhibit P-4 dated 20.07.2023asking him to upload his written submissions and documents insupport thereof by 31.07.2023. The petitioner made two requestsfor uploading the written statements and documents in supportthereof. Before the second notice Exhibit P-6 dated 10.08.2023,petitioner asked time till 15.08.2023 and in fact he was grantedtime till 18.08.2023. On last date of notice i.e. on 18.08.2023, heagain asked time till 02.09.2023. The petitioner cannot complaintthat he was not afforded opportunity to file written submissionsand supporting documents. He had time till 18.08.2023 from20.07.2023. But he failed to furnish written submissions anddocumentary evidence and again he requested for further time till02.09.2023 pursuant to Exhibit P-6 notice dated 18.08.2023. Aperson who fails to avail the opportunity granted to him to makesubmissions and produce documents in support thereof cannotcomplain about the violation of principles of natural justice. Thequestion of violation of the principles of natural justice ariseswhen, without an opportunity of hearing or time for producing theevidence, the authority proceeds and passes an order against the person. I consider that, that is not the case here. Paragraph 27 ofthe Judgment of MS Radha Krishan Industries (supra) reads asunder; “27. The principles of law which emerge are that : (i) The power under Article 226 of theConstitution to issue writs can be exercisednot only for the enforcement offundamental rights, but for any otherpurpose as well; (ii) The High Court has the discretion not toentertain a writ petition. One of therestrictions placed on the power of the HighCourt is where an effective alternateremedy is available to the aggrieved person;(iii) Exceptions to the rule of alternateremedy arise where (a) the writ petition hasbeen filed for the enforcement of afundamental right protected by Part III ofthe Constitution; (b) there has been aviolation of the principles of natural justice;(c) the order or proceedings are whollywithout jurisdiction; or (d) the vires of alegislation is challenged; (iv) An alternate remedy by itself does notdivest the High Court of its powers underArticle 226of the Constitution in anappropriate case though ordinarily, a writpetition should not be entertained when anefficacious alternate remedy is provided bylaw; (v) When a right is created by a statute,which itself prescribes the remedy or (iv) An alternate remedy by itself does notdivest the High Court of its powers underArticle 226of the Constitution in anappropriate case though ordinarily, a writpetition should not be entertained when anefficacious alternate remedy is provided bylaw; (v) When a right is created by a statute,which itself prescribes the remedy or procedure for enforcing the right orliability, resort must be had to thatparticular statutory remedy before invokingthe discretionary remedy under Article226 of the Constitution. This rule ofexhaustion of statutory remedies is a rule ofpolicy, convenience and discretion; and (vi) In cases where there are disputedquestions of fact, the High Court maydecide to decline jurisdiction in a writpetition. However, if the High Court isobjectively of the view that the nature of thecontroversy requires the exercise of its writjurisdiction, such a view would not readilybe interfered with.” 9.Considering the ratio laid down by the Supreme Court in theaforesaid Judgment of MS Radha Krishan Industries regardingthe exception for entertaining the writ petition despiteavailability of alternate efficacious remedy, I am of the view thatthe case of the petitioner does not fall within the exceptions carveout for entertaining the writ petition despite availability ofalternative remedy. Further the Income Tax Appellate Tribunalcan examine all the evidence which may not have been producedbefore the assessing authority or the appellate authority and alsowould consider all the submissions which may not have beentaken before the appellate authority or the assessing authority todecide the second appeal under Section 253 of the Income Tax Act. The question regarding the Income Tax Appellate Tribunal being not efficacious forum for deciding appeals is also not calledfor inasmuch as the provisions of Section 253 is not in challengebefore this Court. 10.In view thereof, I dispose of this writ petition with adirection to the petitioner to file an appeal before the Income TaxAppellate Tribunal against the impugned order within a period ofone month from today and the petitioner may take all the groundswhich are available to him and produce all evidence in supportthereof. The Income Tax Appellate Tribunal shall consider thedocuments and grounds of the petitioner while disposing of theappeal in accordance with law expeditiously. Petitioner may alsofile an application for the stay of the demand in pursuance to theassessment order and the appellate authority shall consider thesame expeditiously. If the petitioner deposits 20% of theassessed tax, the stay application shall be decided within a periodof one month from the date of filing of the appeal and stayapplication. In view thereof, I dispose of this writ petition with a Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 30276/2023 PETITIONER’S EXHIBITS EXHIBIT P1A TRUE COPY OF THE ASSESSMENT ORDER NO. ITBA/AST/S/143(3)/2019-20/1022424476(1) DATED16.12.2019 ISSUED BY RESPONDENT NO.2 TO THE PETITIONERITBA/AST/S/143(3)/2019-20/1022424476(1) DATED16.12.2019 ISSUED BY RESPONDENT NO.2 TO THE PETITIONER EXHIBIT P2A TRUE COPY OF THE COMPUTATION SHEET ISSUED BY RESPONDENT NO.2 TO THE PETITIONER DATED 16.12.2019BY RESPONDENT NO.2 TO THE PETITIONER DATED 16.12.2019 EXHIBIT P3A TRUE COPY OF THE APPEAL FILED BY PETITIONERBEARING ACKNOWLEDGMENT NUMBER 289453121090120DATED 09.01.2020BEARING ACKNOWLEDGMENT NUMBER 289453121090120DATED 09.01.2020 EXHIBIT P4A TRUE COPY OF THE NOTICE U/S 250 OF THE INCOME TAX ACT, 1961 DATED 20.07.2023 ISSUED BY RESPONDENT NO.1 TO THE PETITIONERINCOME TAX ACT, 1961 DATED 20.07.2023 ISSUED BY RESPONDENT NO.1 TO THE PETITIONER EXHIBIT P5A TRUE COPY OF THE ADJOURNMENT REQUEST PREFERRED BY THE PETITIONER DATED 31.07.2023 E-FILED ON THE WEBSITE OF RESPONDENT NO. 1PREFERRED BY THE PETITIONER DATED 31.07.2023 E-FILED ON THE WEBSITE OF RESPONDENT NO. 1 EXHIBIT P2A TRUE COPY OF THE COMPUTATION SHEET ISSUED BY RESPONDENT NO.2 TO THE PETITIONER DATED 16.12.2019BY RESPONDENT NO.2 TO THE PETITIONER DATED 16.12.2019 EXHIBIT P3A TRUE COPY OF THE APPEAL FILED BY PETITIONERBEARING ACKNOWLEDGMENT NUMBER 289453121090120DATED 09.01.2020BEARING ACKNOWLEDGMENT NUMBER 289453121090120DATED 09.01.2020 EXHIBIT P4A TRUE COPY OF THE NOTICE U/S 250 OF THE INCOME TAX ACT, 1961 DATED 20.07.2023 ISSUED BY RESPONDENT NO.1 TO THE PETITIONERINCOME TAX ACT, 1961 DATED 20.07.2023 ISSUED BY RESPONDENT NO.1 TO THE PETITIONER EXHIBIT P5A TRUE COPY OF THE ADJOURNMENT REQUEST PREFERRED BY THE PETITIONER DATED 31.07.2023 E-FILED ON THE WEBSITE OF RESPONDENT NO. 1PREFERRED BY THE PETITIONER DATED 31.07.2023 E-FILED ON THE WEBSITE OF RESPONDENT NO. 1 EXHIBIT P6A TRUE COPY OF THE NOTICE U/S 250 OF THE INCOME TAX ACT, 1961 DATED 10.08.2023 ISSUED BY RESPONDENT NO.1 TO THE PETITIONERINCOME TAX ACT, 1961 DATED 10.08.2023 ISSUED BY RESPONDENT NO.1 TO THE PETITIONER EXHIBIT P7A TRUE COPY OF THE REQUEST FOR ADJOURNMENT DATED 18.08.2023 E-FILED BY THE PETITIONER INTHE WEBSITE OF THE INCOME TAX AUTHORITYDATED 18.08.2023 E-FILED BY THE PETITIONER INTHE WEBSITE OF THE INCOME TAX AUTHORITY EXHIBIT P8A TRUE COPY OF THE ORDER NO. ITBA/NFAC/S/250/2023-24/1055335883(1) PASSED BY RESPONDENT NO.1 U/S 250 OF INCOME TAX ACT, 1961 DATED 23.08.20232023-24/1055335883(1) PASSED BY RESPONDENT NO.1 U/S 250 OF INCOME TAX ACT, 1961 DATED 23.08.2023