Wp(C)/10311/2023 Of Ply Park v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGHMONDAY, THE 15 DAY OF JANUARY 2024 / 25TH POUSHA, 1945 WP(C) NO. 10311 OF 2023 PETITIONER/S: PLY PARK, 10/350-1, PRIYADARSHINI ROAD, NEAR AROMATHEATER, PALAKKAD-678001 REPRESENTED BY SRI. BASHITH P.B., PARTNER, AGED 40 YEARS.BY ADVS.P.J.ANILKUMAR (A-1768)K.N.SREEKUMARANN.SANTHOSHKUMAR RESPONDENT/S: 1INCOME TAX OFFICER,WARD-2, AAYKAR BHAVAN, ENGLISH CHURCH ROAD, PALAKKAD- 678014.2ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER,ASSESSMENT UNIT, INCOME TAX DEPARTMENT, NATIONAL FACELESS ASSESSMENT CENTRE, NEW DELHI-100001.3ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, INCOME TAX DEPARTMENT, NEW DELHI-100001.BY ADV CHRISTOPHER ABRAHAM OTHER PRESENT:SRI.JOSE JOSEPH-SCTHIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 15.01.2024, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: J U D G M E N T The petitioner is an assessee under theprovisions of the Income Tax Act, 1961 ('Act', forshort). The petitioner did not file its return ofincome for the assessment year 2018-19. However,as per the information flagged in accordance withthe risk management strategy formulated by theCBDT, the petitioner had deposited cash ofRs.1,26,41,200/- in the Bank account and hadwithdrawn cash of Rs.31,87,595/- in the financialyear 2017-18 relevant to the assessment year 2018-19. The petitioner was issued notice under Section148 of the Act and was provided an opportunity ofbeing heard under Section 148A(b) of the Act. Thepetitioner was issued show cause notice to explainas to why the said cash deposit of Rs.1,26,41,200/-should not be assessed as income chargeable to tax,which had escaped assessment within the meaning ofthe provision of Section 147 of the Act for theassessment year 2018-19. The petitioner in response to the notice dated 23.2.2023 hadrequested for adjournment to 17.3.2023 and the webportal of the Income Tax Department would suggestthat the said request was considered, but no datewas given for filing the response. The petitionerwas of the opinion that the petitioner had beengranted time up to 17.3.2023 to give response tothe notice dated 23.2.2023. However, before17.3.2023, the assessment order got finalised videExt.P6 on 14.3.2023. Learned counsel for thepetitioner submits that there has been violation ofthe principles of natural justice, inasmuch as thepetitioner requested on 2.3.2023 for adjournment togive response to the notice dated 23.2.2023, andthe status of the said request would suggest thatthe petitioner was granted time for response, butwithout date. Therefore, the petitioner had bonafide believed that the petitioner was granted timetill 17.3.2023. As the order impugned was passedbefore 17.3.2023, i.e. on 14.3.2023, there wasviolation of principles of natural justice and the order, Ext.P6, needs to be set aside and the matterneeds to be remanded back for providing one moreopportunity to the petitioner to file response tothe show cause notice dated 23.2.2023, and afterhearing the petitioner, the assessing authority mayfinalise the assessment. 2.Sri.Jose Joseph, learned Senior StandingCounsel for the Income Tax Department, is not in aposition to dispute that on petitioner's requestadjournment date for submission of the response tothe show cause notice dated 23.2.2023 was notmentioned and it is also not reflected from Ext.P4,whether the request was accepted or not, becausethe status of the request would show open.However, no adjourned date for submission ofresponse was mentioned. 3.I am in agreement with the learned counselfor the petitioner that in the absence of datementioned for submission of the response to theshow cause notice dated 23.2.2023, the petitionerhad bona fide believed that the petitioner's 2.Sri.Jose Joseph, learned Senior StandingCounsel for the Income Tax Department, is not in aposition to dispute that on petitioner's requestadjournment date for submission of the response tothe show cause notice dated 23.2.2023 was notmentioned and it is also not reflected from Ext.P4,whether the request was accepted or not, becausethe status of the request would show open.However, no adjourned date for submission ofresponse was mentioned. 3.I am in agreement with the learned counselfor the petitioner that in the absence of datementioned for submission of the response to theshow cause notice dated 23.2.2023, the petitionerhad bona fide believed that the petitioner's request for adjournment to 17.3.2023 to giveresponse to the show cause notice dated 23.2.2023was accepted. However, before 17.3.2023, theimpugned order, Ext.P6, has been passed on14.3.2023, and therefore, I am of the consideredview that there was violation of the principles ofnatural justice. For that reason, the impugnedorder is bad in law and is liable to be set aside. 4.In view of the above, the present writpetition is allowed and the impugned order, Ext.P6,dated 14.3.2023 is set aside and the matter isremanded back to the 2[nd] or the 3[rd] respondent, asthe case may be, to open the link provided to thepetitioner for uploading the response to the showcause notice dated 23.2.2023. If the petitionerfails to upload the response within the timeprescribed for the same, the assessing authoritywould be free to pass fresh order or the same orderin Ext.P6. However, if the petitioner filesresponse to the show cause notice dated 23.2.2023on receiving intimation of the link provided to him having been opened for uploading the response, theassessing authority will consider the response tothe show cause notice dated 23.2.2023 and alsoprovide an online opportunity of hearing to thepetitioner before finalising the process. With the aforesaid direction and observation,the present writ petition stands finally disposedof. Pending interlocutory application, if any, inthe present writ petition stands dismissed. jg Sd/- JUDGE DINESH KUMAR SINGH APPENDIX OF WP(C) 10311/2023 PETITIONER EXHIBITS Exhibit-P1TRUE COPY OF THE NOTICE U/S 148 DATED 31..03..2022 ISSUED BY THE 1ST RESPONDENT.31..03..2022 ISSUED BY THE 1ST RESPONDENT. Exhibit-P2TRUE COPY OF THE NOTICE U/S 143(2) DATED 21..09..2022 ISSUED BY THE 2ND RESPONDENT21..09..2022 ISSUED BY THE 2ND RESPONDENT Exhibit-P2(a)TRUE COPY OF THE RESPONSE FILED BY THE PETITIONER DATED 06..10..2022 AGAINST EXT-P2.PETITIONER DATED 06..10..2022 AGAINST EXT-P2. Exhibit-P3TRUE COPY OF THE NOTICE U/S.144 DATED 23..02..2023 ISSUED BY 2ND RESPONDENT.23..02..2023 ISSUED BY 2ND RESPONDENT. Exhibit-P4TRUE COPY OF THE WEB PAGE OF THE INCOME TAX DEPARTMENT DATED 27..02..2023 EVIDENCING THEFILING OF THE ADJOURNMENT APPLICATION ON THEINCOME TAX PORTAL.DEPARTMENT DATED 27..02..2023 EVIDENCING THEFILING OF THE ADJOURNMENT APPLICATION ON THEINCOME TAX PORTAL. Exhibit-P5TRUE COPY OF THE REPLY MAIL DATED 09..03..2023 ALONG WITH SUPPORTING DOCUMENTS09..03..2023 ALONG WITH SUPPORTING DOCUMENTS Exhibit-P6TRUE COPY OF THE ASSESSMENT ORDER DATED14..03..2023 FOR THE ASSESSMENT YEAR 2018-19 ISSUED BY THE 2ND RESPONDENT.DATED14..03..2023 FOR THE ASSESSMENT YEAR 2018-19 ISSUED BY THE 2ND RESPONDENT. Exhibit-P7TRUE COPY OF THE JUDGMENT IN RENJU VS THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX , W.P.(C) 11735/2022 DATED 16..03..2023ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX , W.P.(C) 11735/2022 DATED 16..03..2023