Wp(C)/2917/2010 Of T.s.sujatha v. The Asst.commissioner Of Income Tax,Circ

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 2917 of 2010(L) ------------------------- PETITIONER: --------------- T.S.SUJATHA, M.L.ROAD, KOTTAYAM-686 001. BY ADV. SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE SRI.TERRY V.JAMES RESPONDENTS: --------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, KOTTAYAM. 2. ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM. ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX FOR R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON.J ------------------------------------------------- W.P.(C).NO.2917 OF 2010 ------------------------------------- Dated this the 4[th] day of March, 2010. J U D G M E N T The petitioner is before this court challenging Ext.P15 orderpassed by the first respondent, mainly contending that the same waspassed, without giving an opportunity of hearing to the petitioner andhence is not liable to be enforced. 2. The respondents have filed a statement also producing twodocuments as Ext.R1(a) and R1(b), contending that the allegation ofnon receipt of the notice is wrong and unfounded and that the stepstaken to serve notice to the petitioner were actually thwarted, sincethe members of the family of the petitioner refused to accept the sameand further, the office of the authorised representative (CharteredAccountant) was lying closed as clearly stated in Ext.R1(b). It is alsopointed out by Mr.Jose Joseph, the learned Standing Counsel for therespondents that the petitioner is very much having the alternateremedy and hence no interference is warranted. 3. Sri. Joseph Markose, Senior Counsel appearing for thepetitioner submits that, pursuant to Ext.P3 judgment passed by thisCourt giving appropriate directions to the respondent concerned, the W.P.(C).NO.2917 OF 2010 2 matter was proceeded with and Ext.P5 notice was issued by the firstrespondent in October 2008, to which the petitioner filed Ext.P6objections. Nothing was heard thereafter for quite long, which madethe petitioner to file Ext.P7 representation dated 22.7.2009 (throughthe authorised representative) asking the first respondent to giveeffect to Ext.P3 judgment at the earliest. It was in the saidcircumstance, that Ext.P9 notice was issued afresh, incorporatingsome other points as well, which necessitated filing of furtherobjections. 4. While so, the petitioner filed Ext.P11 application u/S.144Abefore the superior authority i.e the second respondent. The saidapplication was posted for hearing by the second respondent on28.12.2009, as informed to the party vide Ext.P13 notice.Immediately on receipt of Ext.P13 by the authorised representative ofthe petitioner, Ext.P14 application was filed, seeking for adjournmentby '5 days' along with a medical certificate. It is the case of thepetitioner that the petitioner bonafide believed that the matter wasadjourned and the next date of hearing would be communicated tothe authorised representative in due course. Quite shockingly, it issaid, the petitioner was served with Ext.P15 assessment order W.P.(C).NO.2917 OF 2010 3 passed by the first respondent, stating that the proceedings werefinalised as the petitioner had not turned up. The stand of the firstrespondent that notice of hearing was duly served to thepetitioner/authorised representative is vehemently opposed by thepetitioner, referring to the facts and circumstances. W.P.(C).NO.2917 OF 2010 3 passed by the first respondent, stating that the proceedings werefinalised as the petitioner had not turned up. The stand of the firstrespondent that notice of hearing was duly served to thepetitioner/authorised representative is vehemently opposed by thepetitioner, referring to the facts and circumstances. 5. With reference to the observations in paragraph 4 of Ext.15,learned Senior Counsel for the petitioner submits that it was onlyfrom Ext.P15 assessment order, that the petitioner came to know thatthe petition for adjournment (Ext.P4) was rejected by the secondrespondent on 28.12.2009 itself. However, the course pursued isvery much discernible from paragraph 4 of Ext.P15 itself. It isconceded that the 'direction' of the second respondent u/S.144A ofthe IT Act dated 28.2.09 (Ext.R1(a)) was received by the firstrespondent. It is further stated that the second respondent, as perthe 'said order', had directed to complete the assessment withoutdelay, with a further direction that the assessee's claim for allowingtelescoping of incomes and for considering withdrawals from thebank accounts might be examined while passing the assessment.After referring to the directions given by second respondent, it isfurther stated in the very same paragraph that another notice of W.P.(C).NO.2917 OF 2010 4 posting was issued to the assessee, but not accepted at theassessee's address and that the premises of the authorisedrepresentative was found locked from outside. 6. The above discussion shows that Ext.P11 application u/S144A was scheduled to be heard on 28.12.09, that Ext.P14application for adjournment was rejected on 28.12.09 and that thefinal order as borne by R1(a) was passed on that day itself which isstated as received by the first respondent on the very same dayfollowed by a notice stated as issued by the first respondent againon 28.12.09itself. It is with reference to the said notice, stated asissued by the first respondent on 28.12.09, it has been mentioned inExt.P15, that the notice was not accepted by the members of thefamily of the petitioner and further that the office of the authorisedrepresentative was lying locked from outside. This court finds itdifficult to swallow the version of the respondents, without a pinch ofsalt. This court holds that the notice stated as issued by the firstrespondent pursuant to Ext.R1(a) passed by the second respondentwas not duly communicated and this being position, the matterrequires to be reconsidered. 7. There is yet another reason as well. As pointed out by the W.P.(C).NO.2917 OF 2010 5 learned Senior Counsel appearing for the petitioner there isabsolutely no ground to sustain the unwarranted haste shown by therespondents in finalizing the matter, denying effective opportunity ofhearing to the petitioner, more so since there was no question of'limitation' as conceded by the petitioner herself-as taken note of inthe last paragraph of Ext.R1(a). 8. In the above facts and circumstances, Ext.P15 assessmentorder and Ext.P16 demand notice are hereby set aside and the firstrespondent is directed to reconsider the matter, by taking furthersteps from the stage when Ext.R1(a) order passed by secondrespondent was served on the first respondent. Fresh notice shall beissued to the petitioner and the assessment shall be finalized inaccordance with law, as expeditiously as possible, at any rate, withintwo months from the date of receipt of a copy of this judgment. The writ petition is disposed of, as above. P.R.RAMACHANDRA MENON,JUDGE. pm