Wp(C)/29801/2021 Of Dr. Sheela Virginia Rodrigues v. The Principal Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 25 DAY OF JANUARY 2022 / 5TH MAGHA, 1943 WP(C) NO. 29801 OF 2021 PETITIONER : DR. SHEELA VIRGINIA RODRIGUESAGED 58 YEARS, VELOOR HOUSE, ALUMKADAVU P.O., KARUNAGAPPALLY, KOLLAM - 690 518 BY ADVS.S.ARUN RAJSUJA C.T.ARJUN S.RAJ RESPONDENTS : 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN, FIRST FLOOR, KAWDIAR P.O., THIRUVANANTHAPURAM-695 003. 2INCOME TAX OFFICER, WARD-3, OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOMETAX, KOLLAM RANGE, AAYAKAR BHAVAN, NR KARBALA JUNCTION, KOLLAM-691 001 BY SRI.CHRISTOPHER ABRAHAM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BECHU KURIAN THOMAS, J.=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No.29801 of 2021=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 25[th] day of January, 2022 JUDGMENT Petitioner is a doctor by profession and is aggrieved by theproceedings under the Income Tax Act, 1961 (for short, 'the Act') for theassessment year 2011-2012. She challenges Ext.P10 order by which herapplication for revision under Section 264 of the Act was rejected merelyon the ground of delay. 2. Petitioner alleges that, when her bank accounts wereattached on 26.03.2019 by a notice issued under Section 226(3) of theAct. On enquiry, she realized that a demand of Rs.7,95,840/- wasintimated under Section 143(1), allegedly issued on 19.02.2014.Petitioner contended that she had never received the intimation of 2014and that on noticing the contents of the intimation, she realised that therewas a mistake in the return filed. Thereafter a revision petition was filedunder Section 264 of the Act on 24.09.2019. However, by the impugnedorder dated 08.03.2021, the revision petition was rejected on the groundthat the application filed under Section 264 was highly belated and furtherthat the intimation was sent to the petitioner on 19.02.2014 to the mail idof the assessee and hence there was no sufficient cause for not invoking the remedy under Section 264 of the Act, within time. 3. The learned Counsel for the Petitioner Sri.ArunRaj S. vehemently contended that petitioner was completely in the darkabout the intimation dated 19.02.2014. According to the learned Counsel,apart from the absence of any material to show that such an intimationwas sent to the mail id of the petitioner, the rules for electroniccommunications came into effect only in 2015 and hence the response ofthe department that the intimation was sent in 2014 through mail idcannot be accepted. Even otherwise, according to the learned counsel forthe petitioner, in 2014, sending communications through mail was not apractice in vogue and that, considering the nature of the claim raised in therevision, the same ought to have been considered on merits so that theassessee was not put to prejudice. 4. The learned Standing Counsel for the respondents Sri.Christopher Abraham, on the other hand justified the order impugnedand stated that in the light of the clear delay of more than 5 years inpreferring the revision petition under Section 264 of the Act, the firstrespondent had no other alternative, other than to dismiss the same. 5. On a consideration of the rival arguments, it is noticed thatpetitioner's specific contention was that the intimation issued underSection 143(1) came to the attention of the petitioner only on 26.03.2019.A perusal of Ext.P4 letter issued on 17.04.2019 shows that immediately oncoming to know about the attachment of the bank account, petitioner had 4. The learned Standing Counsel for the respondents Sri.Christopher Abraham, on the other hand justified the order impugnedand stated that in the light of the clear delay of more than 5 years inpreferring the revision petition under Section 264 of the Act, the firstrespondent had no other alternative, other than to dismiss the same. 5. On a consideration of the rival arguments, it is noticed thatpetitioner's specific contention was that the intimation issued underSection 143(1) came to the attention of the petitioner only on 26.03.2019.A perusal of Ext.P4 letter issued on 17.04.2019 shows that immediately oncoming to know about the attachment of the bank account, petitioner had requested the first respondent to issue a copy of the intimation underSection 143(1). In response to the said request, the first respondentissued the intimation along with the covering letter dated 15.05.2019,pursuant to which Ext.P9 revision petition was filed under Section 264 ofthe Act. 6. It is true that the respondents have not referred to anyspecific mail nor have they produced the details of the mail sent to thepetitioner as alleged to have been sent on 19.02.2014. It is also true thatthe practice of sending communications by mail was not a prevalentpractice in the year 2014 and normally the assessee would have expectedcommunications to be served by post rather than mail. 7. The tendency to check the emails with all its seriousness,that too, those from the income tax department was not a practice invogue in those days. Though technologically, we have advanced leaps andbounds, still, while appreciating the circumstances of this case, this Courtcannot ignore the realities of the communication system and the humanconduct that existed 8 years ago. Thus even if it is assumed thatpetitioner had received the email communication, in the absence of thesaid communication being the only mode of service of notice prescribed bylaw, an assessee cannot be blamed if they assumed that the e-mailcommunication would be followed by a written communication. To denythe opportunity of the petitioner to contest her case due to an e-mailcommunication send in 2014, would be to say the least a violation of her rights. In the ultimate analysis, reliance upon such a procedure is toohypertechnical and causes prejudice to the petitioner. 8. In view of the above appreciation, I find that the firstrespondent was too technical while rejecting the application of thepetitioner filed under Section 264 of the Act. In this context, theprovisions of Section 264(3) cannot be ignored. The wordings used inSection 264(3) conveys that the application must be made within one yearfrom the date on which the order was communicated to the assessee orthe date on which the assessee came to know of, whichever is earlier. 9. Since there is nothing to disbelieve the version of theassessee that the order was communicated only in 2019 and she came toknow about the order only after March, 2019, I am of the view thatExt.P10 order is legally unacceptable and is liable to be set aside.Accordingly I hereby hold that Ext.P9 was filed within the time ascontemplated under Section 264(3) of the Act. Accordingly, Ext.P10 shall stand set aside and the firstrespondent is directed to consider the case of the petitioner afresh andpass appropriate orders on Ext.P9 on merits. RKM Sd/- BECHU KURIAN THOMAS, JUDGE APPENDIX OF WP(C) 29801/2021 PETITIONER'S EXHIBITS : Exhibit P1TRUE COPY OF THE RETURN OF INCOME FILED BYTHE PETITIONER FOR THE AY 2011-12 THE PETITIONER FOR THE AY 2011-12 Exhibit P2TRUE COPY OF THE FORM 26 AS STATEMENT DATED 31.3.2013 DATED 31.3.2013 Exhibit P3TRUE COPY OF THE NOTICE DATED 26.3.2019 U/S 226(30 ISSUED BY THE 2ND RESPONDENT FOR THE AY 2011-12 U/S 226(30 ISSUED BY THE 2ND RESPONDENT FOR THE AY 2011-12 Accordingly, Ext.P10 shall stand set aside and the firstrespondent is directed to consider the case of the petitioner afresh andpass appropriate orders on Ext.P9 on merits. RKM Sd/- BECHU KURIAN THOMAS, JUDGE APPENDIX OF WP(C) 29801/2021 PETITIONER'S EXHIBITS : Exhibit P1TRUE COPY OF THE RETURN OF INCOME FILED BYTHE PETITIONER FOR THE AY 2011-12 THE PETITIONER FOR THE AY 2011-12 Exhibit P2TRUE COPY OF THE FORM 26 AS STATEMENT DATED 31.3.2013 DATED 31.3.2013 Exhibit P3TRUE COPY OF THE NOTICE DATED 26.3.2019 U/S 226(30 ISSUED BY THE 2ND RESPONDENT FOR THE AY 2011-12 U/S 226(30 ISSUED BY THE 2ND RESPONDENT FOR THE AY 2011-12 Exhibit P4TRUE COPY OF THE LETTER DATED 17.4.2019 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P5TRUE COPY OF THE LETTER DATED 15.5.2019 SENT TO THE PETITIONER BY THE 2ND RESPONDENTSENT TO THE PETITIONER BY THE 2ND RESPONDENT Exhibit P6TRUE COPY OF THE INTIMATION DATED 19.2.2014 PASSED U/S 143(10 OF THE ACT BY THE 2ND RESPONDENT 19.2.2014 PASSED U/S 143(10 OF THE ACT BY THE 2ND RESPONDENT Exhibit P7TRUE COPY OF THE FORM 16 ISSUED BY THE CONCERNED DEPARTMENT OF THE EMPLOYER, WHICH IS RELEVANT TO THE AY 2011-12 CONCERNED DEPARTMENT OF THE EMPLOYER, WHICH IS RELEVANT TO THE AY 2011-12 Exhibit P8TRUE COPY OF THE REVISED FORM 26 AS STATEMENT PERTAINING TO THE AY 2011-12 STATEMENT PERTAINING TO THE AY 2011-12 Exhibit P9TRUE COPY OF THE REVISION PETITION UNDER SECTION 264 OF THE INCOME TAX SUBMITTED BYTHE PETITIONER TO THE 1ST RESPONDENT SECTION 264 OF THE INCOME TAX SUBMITTED BYTHE PETITIONER TO THE 1ST RESPONDENT Exhibit P10TRUE COPY OF THE ORDER DATED 8.3.2021 PASSED UNDER SECTION 264 OF THE ACT BY THE1ST RESPONDENT PASSED UNDER SECTION 264 OF THE ACT BY THE1ST RESPONDENT Exhibit P11TRUE COPY OF THE NOTIFICATION NO 2/2016 DATED 3.2.2016 ISSUED BY THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA DATED 3.2.2016 ISSUED BY THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA