Wp(C)/1734/2022 Of Save A Family Plan (India) v. The Deputy Commissioner Of Income Tax (Exemptions)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 7 DAY OF JUNE 2022 / 17TH JYAISHTA, 1944WP(C) NO. 1734 OF 2022 PETITIONER: SAVE A FAMILY PLAN (INDIA)AISWARYAGRAM, PARAPPURAM, KANJOOR, ERNAKULAM - 683593, REPRESENTED BY ITS EXECUTIVE DIRECTOR,FR. MARSHEL MELAPPELLY. BY ADVS.JOSEPH MARKOSE (SR.)V.ABRAHAM MARKOSABRAHAM JOSEPH MARKOSISAAC THOMASP.G.CHANDAPILLAI ABRAHAMSHARAD JOSEPH KODANTHARA RESPONDENTS: 1THE DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS)CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI - 682018. 2THE COMMISSIONER OF INCOME TAX (APPEALS) AREECKAL MANSION, PANAMPILLY NAGAR, KOCHI - 682018. 3COMMISSIONER OF INCOME TAX (APPEALS)NATIONAL FACELESS ASSESSMENT CENTRE,NEW DELHI - 110001. 4THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAXNATIONAL E - ASSESSMENT CENTRE, NEW DELHI - 110001. 5UNION OF INDIAMINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI - 110001, REPRESENTED BY ITS SECRETARY. BY ADV S.VAIDYANATHAN OTHER PRESENT: SRI. CHRISTOPHER ABRAHAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 07.06.2022, ALONG WITH WP(C).1976/2022, THE COURT ON THESAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 7 DAY OF JUNE 2022 / 17TH JYAISHTA, 1944WP(C) NO. 1976 OF 2022 PETITIONER: SAVE A FAMILY PLAN (INDIA)AISWARYAGRAM, PARAPPURAM, KANJOOR, REPRESENTED BY ITS EXECUTIVE DIRECTOR,FR.MARSHEL MELAPPELLY. BY ADVS.JOSEPH MARKOSE (SR.)V.ABRAHAM MARKOSABRAHAM JOSEPH MARKOSISAAC THOMASP.G.CHANDAPILLAI ABRAHAMALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARA RESPONDENTS: 1THE DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS),CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, KOCHI-682018. 2THE COMMISSIONER OF INCOME TAX(APPEALS), AREECKAL MANSION, PANAMPILLY NAGAR, KOCHI-682036. 3COMMISSIONER OF INCOME TAX(APPEALS),NATIONAL FACELESS ASSESSMENT CENTRE,NEW DELHI-110001. 4THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAXNATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110001.NATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110001. 5UNION OF INDIA MINISTRY OF FINANCE,DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110001, REPRESENTED BY ITS SECRETARY.NORTH BLOCK, NEW DELHI-110001, REPRESENTED BY ITS SECRETARY. 6THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, 1ST FLOOR, BLOCK C-1 & C-11, KOCHI BENCH, 1ST FLOOR, BLOCK C-1 & C-11, KOCHI BENCH, 1ST FLOOR, BLOCK-C-1 & C-11,KENDRIYA BHAVAN, KAKKANAD,KERALA-682037.KENDRIYA BHAVAN, KAKKANAD,KERALA-682037. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 07.06.2022, ALONG WITH WP(C).1734/2022, THE COURT ON THESAME DAY DELIVERED THE FOLLOWING: J U D G M E N T [WP(C) Nos.1734/2022, 1976/2022] The petitioner is common in these cases. The issue arising for consideration is also common and can be convenientlydisposed of by a common judgment. 2.The petitioner faced assessment proceedings inrespect of assessment years 2013-2014, 2014-2015 & 2015-2016.The petitioner filed appeals before the appellate authoritychallenging the orders of assessment. It appears that theappeals have been disposed of without affording an opportunityof hearing to the petitioner, as hearing was not mandatory underthe scheme National Faceless Appeal Scheme, 2020. 3.The learned senior counsel appearing for thepetitioner in these cases would submit that under the NationalFaceless Appeal Scheme, 2020, the hearing was granted to theassessee only at the discretion of Principal Chief Commissioner.It is submitted that this provision of the National FacelessAssessment Scheme, 2020 came to be challenged before variousCourts and while the matters were being considered by the Supreme Court, the scheme itself was amended, making itmandatory for assessees to be heard, while appeals are decided,if such an option is sought. 3.The learned senior counsel appearing for thepetitioner in these cases would submit that under the NationalFaceless Appeal Scheme, 2020, the hearing was granted to theassessee only at the discretion of Principal Chief Commissioner.It is submitted that this provision of the National FacelessAssessment Scheme, 2020 came to be challenged before variousCourts and while the matters were being considered by the Supreme Court, the scheme itself was amended, making itmandatory for assessees to be heard, while appeals are decided,if such an option is sought. 4.The learned standing counsel appearing for therespondents would content that the orders at Exts.P16 & P17 inW.P(C) No.1734/2022 and Ext.P2 in W.P.(C)No.1976/2022,pertaining to the assessment years in question cannot be faulted,because they are issued in accordance with the provisions of thescheme as it existed at that point of time. However, he fairlysubmits that as per the amended scheme, hearing is mandatory. 5.Taking note of the submissions of the learned seniorcounsel appearing for the petitioner in these cases and thelearned standing counsel appearing for the Income TaxDepartment, I am of the opinion that the denial of opportunity tothe petitioner for a hearing at the stage of appeal is a violation ofprinciples of natural justice and even if the provisions of thescheme did not provide for such an opportunity, the rules ofnatural justice have to be read into the scheme and the petitionerwas definitely entitled to an opportunity to present its casebefore the appeals were decided. It must also be noticed that thescheme itself has been later amended making it mandatory to W.P(C).Nos.1734 & 1976 of 2022 grant an opportunity of hearing if the same is sought. Therefore,I am of the view that Exts.P16 & P17 in W.P(C) No.1734/2022and Ext.P2 in W.P.(C)No.1976/2022 which are orders in appealfor assessment years 2013-2014, 2014-2015 & 2015-2016 areliable to be set aside. Therefore Exts.P16 & P17 in W.P(C)No.1734/2022 and Ext.P2 in W.P.(C)No.1976/2022 are quashed.Consequently, the appeals filed by the petitioner in respect of theaforesaid assessment years will stand restored to file and theyshall be disposed of in accordance with law after affording anopportunity of hearing to the petitioner. These writ petitions will stand allowed in the mannerindicated above. Sd/- GOPINATH P.JUDGE ats APPENDIX OF WP(C) 1734/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ASSESSMENT ORDER DATED 30.03.2016 FOR ASSESSMENT YEAR 2013-14 PASSED BY THE 1ST RESPONDENT. Exhibit P2 TRUE COPY OF ASSESSMENT ORDER DATED 20.12.2019 FOR ASSESSMENT YEAR 2014-15 PASSED BY THE 1ST RESPONDENT. Exhibit P3TRUE COPY OF APPEAL DATED 18.04.2016 FORASSESSMENT YEAR 2013-14ASSESSMENT YEAR 2013-14 Exhibit P4TRUE COPY OF APPEAL DATED 20.01.2020 FORASSESSMENT YEAR 2014-15.ASSESSMENT YEAR 2014-15. Exhibit P5TRUE COPY OF THE JUDGMENT DATED 09.03.2020 OF THIS HON'BLE COURT IN WP.NO.7039 OF 2020.09.03.2020 OF THIS HON'BLE COURT IN WP.NO.7039 OF 2020. Exhibit P6TRUE COPY OF THE NOTIFICATION DATED 25.09.2020 INTRODUCING FACELESS APPEAL SCHEME, 2020 BY THE GOVERNMENT OF INDIA.25.09.2020 INTRODUCING FACELESS APPEAL SCHEME, 2020 BY THE GOVERNMENT OF INDIA. Exhibit P7TRUE COPY OF THE ORDER DATED 16.10.2020 IN WP(C) NO. 8044/2020 OF THE DELHI HIGHCOURT. IN WP(C) NO. 8044/2020 OF THE DELHI HIGHCOURT. Exhibit P8TRUE COPY OF THE ORDER DATED 03.09.2021 PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021.PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021. Exhibit P9 TRUE COPY OF THE ORDER DATED 01.10.2021 PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021.PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021. Exhibit P6TRUE COPY OF THE NOTIFICATION DATED 25.09.2020 INTRODUCING FACELESS APPEAL SCHEME, 2020 BY THE GOVERNMENT OF INDIA.25.09.2020 INTRODUCING FACELESS APPEAL SCHEME, 2020 BY THE GOVERNMENT OF INDIA. Exhibit P7TRUE COPY OF THE ORDER DATED 16.10.2020 IN WP(C) NO. 8044/2020 OF THE DELHI HIGHCOURT. IN WP(C) NO. 8044/2020 OF THE DELHI HIGHCOURT. Exhibit P8TRUE COPY OF THE ORDER DATED 03.09.2021 PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021.PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021. Exhibit P9 TRUE COPY OF THE ORDER DATED 01.10.2021 PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021.PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021. Exhibit P10TRUE COPY OF THE ORDER DATED 10.01.2022 PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021. PASSED BY THE HON'BLE SUPREME COURT IN TRANSFER PETITION NOS. 1445/1446 OF 2021. Exhibit P11TRUE COPY OF THE NOTIFICATION DATED 28.12.2021 ISSUED BY THE GOVERNMENT OF INDIA INTRODUCING FACELESS APPEAL SCHEME, 2021. 28.12.2021 ISSUED BY THE GOVERNMENT OF INDIA INTRODUCING FACELESS APPEAL SCHEME, 2021. Exhibit P12TRUE COPY OF THE NOTICE DATED 22.11.2021ISSUED BY THE 3RD RESPONDENT FOR ASSESSMENT YEAR 2013-14. ISSUED BY THE 3RD RESPONDENT FOR ASSESSMENT YEAR 2013-14. Exhibit P13TRUE COPY OF THE NOTICE DATED 22.11.2021ISSUED BY THE 3RD RESPONDENT FOR ASSESSMENT YEAR 2014-15.ISSUED BY THE 3RD RESPONDENT FOR ASSESSMENT YEAR 2014-15. Exhibit P14TRUE COPY OF THE RESPONSE ACKNOWLEDGEMENT DATED 29.11.2021 ALONG WITH WRITTEN SUBMISSIONS FOR ASSESSMENT YEAR 2013-14 FILED BY THE PETITIONER. ACKNOWLEDGEMENT DATED 29.11.2021 ALONG WITH WRITTEN SUBMISSIONS FOR ASSESSMENT YEAR 2013-14 FILED BY THE PETITIONER. Exhibit P15TRUE COPY OF THE RESPONSE ACKNOWLEDGEMENT DATED 29.11.2021 ALONG WITH WRITTEN SUBMISSIONS FOR ASSESSMENT YEAR 2014-15 FILED BY THE PETITIONER. ACKNOWLEDGEMENT DATED 29.11.2021 ALONG WITH WRITTEN SUBMISSIONS FOR ASSESSMENT YEAR 2014-15 FILED BY THE PETITIONER. Exhibit P16TRUE COPY OF THE APPELLATE ORDER DATED 03.12.2021 FOR ASSESSMENT YEAR 2013-14.03.12.2021 FOR ASSESSMENT YEAR 2013-14. Exhibit P17TRUE COPY OF THE APPELLATE ORDER DATED 17.12.2021 FOR ASSESSMENT YEAR 2014-15. 17.12.2021 FOR ASSESSMENT YEAR 2014-15. Exhibit P18TRUE COPY OF THE RECOVERY NOTICE DATED 30.12.2021 FOR ASSESSMENT YEAR 2013-14.30.12.2021 FOR ASSESSMENT YEAR 2013-14. Exhibit P19TRUE COPY OF THE RECOVERY NOTICE DATED 31.12.2021 FOR ASSESSMENT YEAR 2014-15.31.12.2021 FOR ASSESSMENT YEAR 2014-15. APPENDIX OF WP(C) 1976/2022 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ASSESSMENT ORDER DATED 31.12.2017 OF THE 1ST RESPONDENT 31.12.2017 OF THE 1ST RESPONDENT Exhibit P2TRUE COPY OF THE ORDER DATED 02.12.2021 PASSED BY THE 2ND RESPONDENT BY THE 2ND RESPONDENT Exhibit P3TRUE COPY OF THE NOTIFICATION DATED 25.09.2020 ISSUED BY THE MINISTRY OF FINANCE, (DEPARTMENT OF REVENUE), (CENTRAL BOARD DIRECT TAXES),NEW DELHI.ISSUED BY THE MINISTRY OF FINANCE, (DEPARTMENT OF REVENUE), (CENTRAL BOARD DIRECT TAXES),NEW DELHI. Exhibit P4TRUE COPY OF THE SECOND APPEAL DATED 04.01.2022FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. Exhibit P5TRUE COPY OF COVERING LETTER DATED 07.01.2022 TOGETHER WITH THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.TOGETHER WITH THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. Exhibit P6TRUE COPY OF THE COMMUNICATION DATED 30.12.2021ISSUED BY THE 1ST RESPONDENT ISSUED BY THE 1ST RESPONDENT Exhibit P7TRUE COPY OF THE WRITTEN SUBMITTED DATED NIL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P8TRUE COPY OF THE APPEAL DATED NIL FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHIFOR ASSESSMENT YEAR 2015-16.THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHIFOR ASSESSMENT YEAR 2015-16.