Wp(C)/28152/2022 Of Jesna Steefan v. Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGHWEDNESDAY, THE 20 DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945WP(C) NO. 28152 OF 2022 PETITIONER: JESNA STEEFAN,AGED 33 YEARS, 12/234 BIJUS COTTAGE, KANNIAMPURAM, OTTAPPALAM, PALAKKAD, PIN - 679104. BY ADV. SMT. AMMU CHARLES RESPONDENT: ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER, NATIONAL FACELESS ASSESSMENT CENTRE, DELHI, PIN - 110001. BY ADVS. SRI. JOSE JOSEPH - SC - INCOME TAX SRI. P. K. RAVINDRANATHA MENON (SR.) SRI. P. G. JAYASHANKAR SRI. KEERTHIVAS GIRI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON20.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No.28152 of 2022 ------------------------- Dated this the 20[th] day of December, 2023 JUDGMENT 1.The present writ petition has been filed by the petitioner whois an assessee under the provisions of the Income Tax Act, 1961impugning Exhibits P-2, P-4, P-5 to P-10. Exhibit P-7 is theassessment order passed under Section 147 read with Section 144Bof the Income Tax Act dated 31.03.2022 in respect of the assessmentyear 2017-18. The present writ petition has been filed by the petitioner who 2.The petitioner did not file return of income for the assessmentyear 2017-18. As per the information received through MultiyearNMS cases in AIMS module of ITBA, the petitioner had carried outfinancial transaction of huge amount during the financial year 2016-17. On analysis of the said information, it was concluded that theincome of the petitioner has escaped income within the meaning ofSection 147 of Income Tax Act and, therefore, the assessingauthority concluded that there was reason to believe that theincome chargeable to tax are escaped assessment in the case of thepetitioner/assessee for the assessment year 2017-18. Accordingly, after approval of the competent authority, notice under Section 148of the Income Tax Act was issued to the petitioner/assessee on29.03.2021. despite service of the said notice, the petitioner did notfile return of his income in response to the said notice andthereafter, a notice under Section 142 (1) of the Income Tax Act wasissued on 19.07.2021 and 16.03.2022 for compliance with. But thepetitioner/assessee did not file any reply in response to the saidnotice. As the petitioner was not coming forth despite having beengiven two opportunities for uploading the documents and replies tothe Show Cause Notices, the assessing authority was left with noother alternative but, to make addition on the basis of theinformation available to the department and accordingly the totalassessable income was found to be 4,00,98,170/- on which tax wasdemanded and penalty proceedings under Section 270A, 271B,272A(1)(d) and 271F were ordered to be initiated. 3.The assessment order notes that the final opportunity wasgiven to the assessee on 30.03.2022 by issuing a show cause noticealong with draft assessment order for compliance. Only one daytime was granted to the petitioner to file reply to the Show CauseNotice and draft assessment order. 4.Considering the fact that only one day time was granted to thepetitioner in the notice dated 30.03.2022, I am of the consideredview that virtually no opportunity was granted to the petitioneragainst the draft assessment order and there has been violation ofthe principles of natural justice from the stage of issuing the ShowCause Notice dated 30.03.2022 whereby the draft assessment orderwas communicated to the petitioner. 3.The assessment order notes that the final opportunity wasgiven to the assessee on 30.03.2022 by issuing a show cause noticealong with draft assessment order for compliance. Only one daytime was granted to the petitioner to file reply to the Show CauseNotice and draft assessment order. 4.Considering the fact that only one day time was granted to thepetitioner in the notice dated 30.03.2022, I am of the consideredview that virtually no opportunity was granted to the petitioneragainst the draft assessment order and there has been violation ofthe principles of natural justice from the stage of issuing the ShowCause Notice dated 30.03.2022 whereby the draft assessment orderwas communicated to the petitioner. 5.In the above circumstances, the petitioner is permitted to filereply to the Show Cause Notice dated 30.03.2022 within seven daysfrom today. The petitioner shall be granted seven days time formthe date the link is provided to the petitioner to for uploading thereply to the Show Cause Notice dated 30.03.2022 and thereafter thefinal assessment order shall be passed after giving an opportunity ofhearing to the petitioner. The link for uploading the reply should beintimated on the registered E-mail id of the petitioner as mentionedin Exhibit P-1. If the petitioner does not avail the opportunity offiling the reply to the Show Cause Notice dated 30.03.2022 asdirected above, no further opportunity shall be granted to thepetitioner and it would be presume that the petitioner has nothingto say in response to the Show Cause Notice dated 30.03.2022 and the impugned order and subsequent notices shall be held to be valid and the authority would be free to proceed to realise the tax andpenalty amount from the petitioner. 6.The petitioner shall not raise the objection regarding the time barred assessment as the matter has been remanded back by thisCourt in exercise of its jurisdiction under Article 226 of theConstitution of India. With the aforesaid directions, this writ petition is allowed to the extent of setting aside the assessment order in Exhibit P-7 andsubsequent notices thereafter. Svn Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 28152/2022 PETITIONER'S EXHIBITS EXHIBIT P1TRUE COPY OF THE SCREENSHOT OF THE PROFILE OF THEPETITIONER IN THE INCOME TAX E-PORTAL EXHIBIT P2TRUE COPY OF THE SHOW CAUSE NOTICE FOR PENALTYUNDER SECTION 271F OF THE INCOME TAX ACT 1961DATED 28.07.2022EXHIBIT P3TRUE COPY OF THE SCREENSHOT OF EMAILCOMMUNICATION WHICH ATTACHED EXHIBIT P2 SHOWCAUSE NOTICEEXHIBIT P4TRUE COPY OF THE NOTICE DATED 02.08.2022 ISSUEDUNDER SECTION 274 READ WITH SECTION 271B OF THEINCOME TAX ACT 1961EXHIBIT P5TRUE COPY OF SECTION 148 NOTICE DATED 29.03.2021EXHIBIT P6TRUE COPY OF THE SHOW CAUSE NOTICE DATED30.03.2022EXHIBIT P7TRUE COPY OF THE ASSESSMENT ORDER DATED31.03.2022EXHIBIT P8TRUE COPY OF THE DEMAND NOTICE DATED 31.03.2022EXHIBIT P9TRUE COPY OF THE SECTION 270A PENALTY NOTICEDATED 31-3-2022 EXHIBIT P11TRUE COPY OF THE SCREENSHOT OF EMAILCOMMUNICATION WHICH ATTACHED EXHIBIT P5 NOTICEUNDER SECTION 148 OF INCOME TAX ACT, 1961EXHIBIT P12TRUE COPY OF THE SCREENSHOT OF EMAILCOMMUNICATION WHICH ATTACHED EXHIBIT P10 PENALTYNOTICEEXHIBIT P13TRUE COPY OF THE BOMBAY HIGH COURT JUDGMENT INGSTAAD HOTELS PRIVATE LIMITED V. ASSESSINGAUTHORITY NATIONAL FACELESS ASSESSMENT CENTRE,DELHI & ANR. [WRIT PETITION NO.2253 OF 2021]