Wp(C)/14131/2023 Of Parapurathchelantakath Puthiyapurayil Aboobacker v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 23 DAY OF AUGUST 2023 / 1ST BHADRA, 1945 WP(C) NO. 14131 OF 2023 PETITIONER/S: PARAPURATHCHELANTAKATH PUTHIYAPURAYIL ABOOBACKERAGED 54 YEARSTMC YASSIN FRUITS, TALIPARAMBA P.O, MAIN ROAD, TALIPARAMBA, KANNUR, PIN - 670141BY ADVS.S.ARUN RAJC.T.SUJAARJUN S.RAJ RESPONDENT/S: 1THE INCOME TAX OFFICERWARD-3, AAYAKAR BHAVAN, KONNOTHUMCHAL, CHOVVA P.O, KANNUR, PIN - 6700062ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER, ASSESSMENT UNIT, NATIONAL E-ASSESSMENT CENTRE, DELHIINCOME TAX DEPARTMENT, 2ND FLOOR, E- RAMP, JAWAHARLAL NEHRU STADIUM, NEW DELHI, PIN - 1100033THE PRINCIPAL COMMISSIONER OF INCOME TAXAAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE, PIN - 673001BY ADVS.JOSE JOSEPH, SC, INCOME TAX DEPARTMENT, KERALACHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The writ petition is filed, inter-alia, to quash Exts.P1notice, P2 order and P3 notice issued by the 1[st]respondent. 2. The petitioner's case is that he is doing businessin fruits. The 1[st] respondent had issued Ext.P1 noticeunder Section 148 A(b) of the Income Tax Act, 1961 (inshort, “Act”), alleging that the petitioner's chargeableincome for the assessment year 2018-19 has escapedassessment. The petitioner was unaware of Ext.P1 noticeand could not file his objection. Subsequently, the 1[st]respondent issued Ext.P2 order under Section 148A(d) ofthe Act stating that as the petitioner did not respond toExt.P1 notice, it is assumed that the petitioner has noexplanation to offer. With the afore-cited finding, the 1[st]respondent issued Ext.P3 notice under Section 148 of theAct. It is then that the petitioner came to learn about theissuance of Ext.P4 notice. The petitioner submittedExt.P5 reply to the same. Then, the 2[nd] respondent completed the assessment on 15.03.2023 and passedExt.P8 assessment order making an addition ofRs.4,23,42,583/-. On a perusal of Ext.P8 order, thepetitioner learnt that a show-cause notice along with adraft assessment order was issued on 17.02.2023, callingfor objections to be filed on or before 09.03.2023. Ext.P9show cause notice was not served on the petitioner ascontemplated under sub-clause (ii) of sub-section (7) ofSection 144B of the Act before completing Ext.P6assessment. The said provision specifically provides thatevery notice has to be placed in the registered account ofthe assesee or sent to his registered email or mobilephone number, which is to be followed by a real timealert. The sending of the real time alert is a mandatoryrequirement, failing which the notice become ineffectiveand notice shall not be treated as served. The petitionerwas denied an opportunity of filing his objection to theshow cause notice and draft assessment order. Ext.P1notice was issued by the 1[st] respondent without givingseven clear days time to the petitioner to reply to the show cause notice as per the mandate under Section148A(b), which renders Ext.P1 notice and theconsequential Exts.P2 order and P3 notice as illegal andinvalid. Hence, the writ petition. 3. The learned Standing Counsel appearing for the respondents has filed a statement, inter-alia, fairlyconceding that the contentions of the petitioner appearsto be valid. A perusal of Ext.P1 notice issued underSection 148A(b) shows that the notice dated 18.03.2022was send to the petitioner with a requirement to submita reply on or before 24.03.2022, which is short of sevenclear days and in turn is against the statutory mandateunder Section 148A(b). Therefore Ext.P1 notice is to bedeclared invalid and the consequential Exts.P2 and P3orders are to be set aside. show cause notice as per the mandate under Section148A(b), which renders Ext.P1 notice and theconsequential Exts.P2 order and P3 notice as illegal andinvalid. Hence, the writ petition. 3. The learned Standing Counsel appearing for the respondents has filed a statement, inter-alia, fairlyconceding that the contentions of the petitioner appearsto be valid. A perusal of Ext.P1 notice issued underSection 148A(b) shows that the notice dated 18.03.2022was send to the petitioner with a requirement to submita reply on or before 24.03.2022, which is short of sevenclear days and in turn is against the statutory mandateunder Section 148A(b). Therefore Ext.P1 notice is to bedeclared invalid and the consequential Exts.P2 and P3orders are to be set aside. 4. Heard; Sri.S. Arun Raj, the learned Counselappearing for the petitioner and Sri.ChristopherAbraham, the learned Standing Counsel appearing forthe respondents. 5. On a consideration of the pleadings and materials on record, and particularly taking note of the stand ofthe respondents in the statement filed before this Court,I am of the definite view that Exts.P1 to P3 and P6assessment order have to be quashed and the petitionerhas to be served with a fresh notice following themandate under Section 148A(b) of the Act and inaccordance with law. Resultantly, I order the writ petition as follows: (i)Exts.P1 notice, P2 order, P3 notice and P6assessment order are quashed.assessment order are quashed. (ii)The respondents would be at liberty to serve a fresh notice to the petitioner as per themandate under Section 148A(b) of the Act andin accordance with law.mandate under Section 148A(b) of the Act andin accordance with law. (iii)If such notice is served on the petitioner, thepetitioner shall place his objection to the same,and the respondents shall consider and disposepetitioner shall place his objection to the same,and the respondents shall consider and dispose of the notice in accordance with law. Sd/- C.S.DIAS JUDGE rkc/23.08.23 APPENDIX OF WP(C) 14131/2023 PETITIONER EXHIBITS Exhibit P1THE TRUE COPY OF THE NOTICE DATED 18-3-2022 ISSUED UNDER SECTION 148A (B) OFTHE IT ACT FOR THE AY 2018-19 OF THE 1STRESPONDENT Exhibit P2A TRUE COPY OF THE ORDER DATED 30-3-2022OF THE 1ST RESPONDENT U/S 148A (D) OFTHE ACT FOR THE AY 2018-19Exhibit P3A TRUE COPY OF THE NOTICE DATED 30-3-2022 OF THE 1ST RESPONDENT U/S 148 OFTHE ACT FOR THE AY 2018-19Exhibit P4A TRUE COPY OF THE SHOW CAUSE NOTICEDATED 18-1-2023 ISSUED U/S 144 OF THE ITACT BY THE 2ND RESPONDENTExhibit P5A TRUE COPY OF THE REPLY DATED 25-1-2023E-FILED BY THE PETITIONERExhibit P6A TRUE COPY OF THE NOTICE DATED 25-1-2023 ISSUED BY THE 2ND RESPONDENTExhibit P7A TRUE COPY OF THE REPLY E-FILED BY THEPETITIONER ON 6-2- 2023Exhibit P8A TRUE COPY OF THE ASSESSMENT ORDERDATED 15-3-2023 PASSED U/S 147 R.W.S144BOF THE ACT BY THE 2ND RESPONDENT FOR THEAY 2018-19 Exhibit P9A TRUE COPY OF THE SHOW CAUSE NOTICEDATED 6-3-2023 WITH THE DRAFT ASSESSMENTORDER GENERATED BY THE 2ND RESPONDENTDATED 6-3-2023 WITH THE DRAFT ASSESSMENTORDER GENERATED BY THE 2ND RESPONDENTExhibit P10A TRUE COPY OF THE JUDGMENT DATED 12-5-2022 IN WP(C) NO. 7385 OF 2022 PASSED BYTHE HIGH COURT OF DELHI2022 IN WP(C) NO. 7385 OF 2022 PASSED BYTHE HIGH COURT OF DELHI Exhibit P11A TRUE COPY OF THE JUDGMENT DATED 20-9-2022 IN WRIT PETITION NO. 2154 OF 20222022 IN WRIT PETITION NO. 2154 OF 2022 PASSED BY THE HIGH COURT OF MUMBAI