Wp(C)/33499/2019 Of Thekkinian Poulose Varkey v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941 WP(C).No.33499 OF 2019(J) PETITIONER/S: THEKKINIAN POULOSE VARKEY,AGED 55 YEARSPROPRIETOR, T.P.CONSTRUCTIONS, AVM COMPLEX, CHIRANGARA KORATTY SOUTH P.O., THRISSUR-680308. BY ADVS.SRI.ANIL D. NAIRSRI.SREEJITH R.NAIRSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. RESPONDENT/S: THE ASSISTANT COMMISSIONER OF INCOME TAX,CIRCLE-2 (1), THRISSUR-680001. OTHER PRESENT: SC SRI.JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The challenge in the writ petition is to Ext.P3 assessment order passedin relation to the petitioner under the Income Tax Act for the assessmentyear 2017-18. In the writ petition, it is the case of the petitioner that Ext.P3assessment order was passed without affording an effective opportunity ofhearing to the petitioner and that it was passed within a day after thesubmission of Ext.P2 reply by the petitioner. 2.I have heard the learned counsel for the petitioner and the learnedStanding Counsel for the respondent. 3.The learned Standing Counsel would submit that the notice invitingobjections to the proposal for assessment had been served as early as on03.10.2019 and the petitioner was called upon to furnish details to clarify thedoubts raised by the department. The response to the said query raised bythe department was not received by the department within the timeindicated in the notice and it was under those circumstances that therespondents proceeded to pass Ext.P3 order on 26.11.2019. Responding tothe submission of the learned counsel for the petitioner, that a request forextension of time had been preferred before the respondent, it is clarifiedthat, although a request was made on 11.10.2019 for extension of time to furnish the objections, no objections were filed within a reasonable timethereafter and the assessing authority waited for more than a month beforepassing Ext.P3 order. It is stated that under the said circumstances, therespondent cannot be faulted for having completed the assessment withoutconsidering the belated reply that was filed by the petitioner to the pre-assessment notices that was issued to him. 4.On a consideration of the facts and circumstances of the case and thesubmissions made across the Bar, I find force in the contention of thelearned counsel for the respondent that Ext.P3 order was passed after givingsufficient opportunity to the petitioner to prefer his objections to the queriesraised by the department, and after granting an opportunity of hearing tothe petitioner before completing the assessment. I do not find Ext.P3 orderto be vitiated by any jurisdictional error or non-compliance with the rules ofnatural justice so as to interfere with the same in these proceedings underArticle 226 of the Constitution of India. Resultantly, I dismiss the writpetition in its challenge against Ext.P3 order and relegate the petitioner tohis alternative remedy of filing an appeal before the first appellate authorityunder the Act. Taking note of the submission of the learned counsel for the petitionerthat he would require some time to move the appellate authority, I directthat recovery proceedings pursuant to Ext.P3 assessment order shall bekept in abeyance for a period of three weeks so as to enable the petitioner to okb move the appellate authority in the meanwhile. The petitioner shall producea copy of the writ petition together with a copy of this judgment before therespondent for further action. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE //True copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE NOTICE DATED 3.10.2019 ISSUED BY THE RESPONDENT.ISSUED BY THE RESPONDENT. EXHIBIT P1 ATRUE COPY OF ANNEXURE ALONG WITH EXHIBIT P1NOTICE.NOTICE. Taking note of the submission of the learned counsel for the petitionerthat he would require some time to move the appellate authority, I directthat recovery proceedings pursuant to Ext.P3 assessment order shall bekept in abeyance for a period of three weeks so as to enable the petitioner to okb move the appellate authority in the meanwhile. The petitioner shall producea copy of the writ petition together with a copy of this judgment before therespondent for further action. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE //True copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE NOTICE DATED 3.10.2019 ISSUED BY THE RESPONDENT.ISSUED BY THE RESPONDENT. EXHIBIT P1 ATRUE COPY OF ANNEXURE ALONG WITH EXHIBIT P1NOTICE.NOTICE. EXHIBIT P2TRUE COPY OF ACKNOWLEDGEMENT OF THE REPLY FILED ALONG WITH REPLY FILED BY THE PETITIONER.FILED ALONG WITH REPLY FILED BY THE PETITIONER. EXHIBIT P3TRUE COPY OF THE ORDER DATED 26.11.2019 PASSED BY THE RESPONDENT.PASSED BY THE RESPONDENT. EXHIBIT P4TRUE COPY OF THE ORDER DATED 22.9.2017 ISSUED BY THE RESPONDENT FOR THE ASSESSMENTYEAR 2015-16.ISSUED BY THE RESPONDENT FOR THE ASSESSMENTYEAR 2015-16. EXHIBIT P5TRUE COPY OF THE LEDGER ACCOUNT OF THE PETITIONER.PETITIONER.