Wp(C)/37544/2023 Of Michealle Fatima Niaz v. The Commissioner Of Income Tax (Appeals) -3

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 21 DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945WP(C) NO. 37544 OF 2023 PETITIONER: MICHEALLE FATIMA NIAZ,AGED 40 YEARS,W/O. LATE MOHAMMED NIAZ, ZEREENE (ABAD RESIDENCY), CHERANELLUR ROAD,EDAPALLY P. O., KOCHI, ERNAKULAM DISTRICT, PIN – 682024. BY ADVS. SRI. K. J. ABRAHAM SRI. PREMJIT NAGENDRAN SRI. NIKHIL JOHN SRI. ARAVINDAKSHAN K. R. SRI. AKHIL SHAJI RESPONDENT: THE COMMISSIONER OF INCOME TAX (APPEALS)-3,4TH FLOOR, CENTRAL REVENUE BUILDING, I. S. PRESS ROAD, KOCHI, PIN – 682018. BY ADV. SMT. SUSIE B. VARGHESE – SR. SC – ITD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No.37544 of 2023 ------------------------- Dated this the 21[st] day of November, 2023 JUDGMENT 1.Heard Mr. Abraham K. J., Learned Counsel for the petitioner andMs. Susie B. Varghese, learned Senior Counsel for the Income TaxDepartment. 2.The present writ petition under Article 226 of the Constitution ofIndia has been filed impugning Exhibits P-34 to P-39 orders passed bythe Commissioner of Income Tax (Appeals) – 3, Kochi in Exhibits P-8 toP-13 appeals which are instituted by one late Mr. Mohammed Niaz,husband of the petitioner on 22.12.2017 against Exhibits P-2 to P-7assessment orders of the Deputy Commissioner of Income Tax, CentralCircle – 1, Ernakulam for the assessment years 2010-11 to 2015-16respectively. 3.The husband of the petitioner had died on 09.05.2018, afterinstituting the appeals. The impugned orders in Exhibits P-34 to P-39would disclose that several notices for hearing in the appeals wereissued to the assessee. However, there were no response to any one of the said notices. The date was fixed on 05.06.2023 for hearing by thenotice dated 30.05.2023. In response to the said notice dated30.05.2023, petitioner, the wife of late Mohammed Niaz sent letterdated 07.06.2023 intimating that her husband had died on 09.05.2018.She also prayed for her impleadment in the appeal in place of herhusband. Therefore, the appeals were posted for hearing on12.06.2023. Thereafter a letter attaching the death certificate ofMohammed Niaz and other documents were filed in the appeal.Exhibits P-15 to P-20 Show Cause Notices dated 23.06.2023 wereissued to the petitioner to which the response was filed vide letterdated 16.08.2023 showing the grounds of appeal and writtensubmission was also filed on 16.08.2023. Considering the grounds ofappeal and written submissions, the impugned orders in Exhibits P-34to P-39 came to be passed. It is very well clear that the appeals werefiled physically. 4.Section 250 of the Income Tax Act, lays down the procedure inappeal. Sub-section (1) of Section 250 mandates the JointCommissioner (Appeals) or Commissioner (Appeals), as the case maybe, to fix a date and place for hearing on the appeal and notice fixingthe date and time is required to be given to the appellant and the Assessing Officer. On receipt of the notice, the appellant in person orauthorised representatives may appear and he/she would have theright to be heard. 4.Section 250 of the Income Tax Act, lays down the procedure inappeal. Sub-section (1) of Section 250 mandates the JointCommissioner (Appeals) or Commissioner (Appeals), as the case maybe, to fix a date and place for hearing on the appeal and notice fixingthe date and time is required to be given to the appellant and the Assessing Officer. On receipt of the notice, the appellant in person orauthorised representatives may appear and he/she would have theright to be heard. 5.From the facts as narrated in the impugned orders itself isevident that after 12.06.2023, no notice of hearing was issued to thepetitioner though she had replied to Exhibits P-15 to P-20 Show CauseNotices as well as filed the written submissions on 16.08.2023. TheCommissioner (Appeals) was aware of the fact that the petitioner’shusband had died on 09.05.2018 and the petitioner being the wife andlegal heir of her late husband has filed impleadment application andalso has filed the written submission and responded to the Show CauseNotices. It is therefore incumbent on the Commissioner (Appeals) tofix the date and place of hearing in the appeals and for that purpose anotice ought to have been issued to the petitioner herein as per theprovisions of Section 250 of the Income Tax Act. No such notice fixingthe date and place of hearing was issued after filing of the writtensubmission by the petitioner. 6.Ms. Susie B. Varghese, learned Senior Standing Counsel for theIncome Tax Department is not in a position to dispute the said factsthat no notice of hearing after filing written submission by the petitioner was given to the petitioner fixing the date and place of hearing. I, thus find that the impugned orders have been issued inviolation of the procedure prescribed under Section 250 of the IncomeTax Act for hearing and deciding the appeals. 7.In view thereof, the present writ petition is allowed and the impugned orders in Exhibits P-34 to P-39 are set aside. The matter isremanded back to the file of the respondent to pass fresh order inaccordance with the law. The petitioner is directed to appear beforethe respondent on 04.12.2023. No notice of hearing shall be issued tothe petitioner. The petitioner may take additional grounds in supportof the appeal if she so advised and the respondent shall proceed todecide the appeals afresh after hearing the petitioner. 8.It is also made clear that no other opportunities shall be given to the petitioner for filing any other documents or evidence except filingof additional grounds if she so advised. With the above directions, the present writ petition is herebydisposed of. Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 37544/2023 PETITIONER’S EXHIBITS EXHIBIT P34TRUE COPY OF THE ORDER IN APPEAL NO. ITA.25/E/CIT(A) III/2019-20 DATED 14.09.2023 FOR THE YEAR 2010-11 PASSED BY THE RESPONDENTITA.25/E/CIT(A) III/2019-20 DATED 14.09.2023 FOR THE YEAR 2010-11 PASSED BY THE RESPONDENT EXHIBIT P35TRUE COPY OF THE ORDER IN APPEAL NO. ITA.26/E/CIT (A)III/2019-20 DATED 13.09.2023 FOR THE YEAR 2011-12 PASSED BY THE RESPONDENT(A)III/2019-20 DATED 13.09.2023 FOR THE YEAR 2011-12 PASSED BY THE RESPONDENT EXHIBIT P36TRUE COPY OF THE ORDER IN APPEAL NO. ITA.27/E/CIT(A) III/2019-20 DATED 14.09.2023 FOR THE YEAR 2012-13 PASSED BY THE RESPONDENTITA.27/E/CIT(A) III/2019-20 DATED 14.09.2023 FOR THE YEAR 2012-13 PASSED BY THE RESPONDENT EXHIBIT P37TRUE COPY OF THE ORDER IN APPEAL NO.ITA.28/E/CIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2013-14 PASSED BY THE RESPONDENTIII/2019-20 DATED 14.09.2023 FOR THE YEAR 2013-14 PASSED BY THE RESPONDENT EXHIBIT P38TRUE COPY OF THE ORDER IN APPEAL NO.ITA.29/E/CIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2014-15 PASSED BY THE RESPONDENTNO.ITA.29/E/CIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2014-15 PASSED BY THE RESPONDENT EXHIBIT P36TRUE COPY OF THE ORDER IN APPEAL NO. ITA.27/E/CIT(A) III/2019-20 DATED 14.09.2023 FOR THE YEAR 2012-13 PASSED BY THE RESPONDENTITA.27/E/CIT(A) III/2019-20 DATED 14.09.2023 FOR THE YEAR 2012-13 PASSED BY THE RESPONDENT EXHIBIT P37TRUE COPY OF THE ORDER IN APPEAL NO.ITA.28/E/CIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2013-14 PASSED BY THE RESPONDENTIII/2019-20 DATED 14.09.2023 FOR THE YEAR 2013-14 PASSED BY THE RESPONDENT EXHIBIT P38TRUE COPY OF THE ORDER IN APPEAL NO.ITA.29/E/CIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2014-15 PASSED BY THE RESPONDENTNO.ITA.29/E/CIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2014-15 PASSED BY THE RESPONDENT EXHIBIT P39TRUE COPY OF THE ORDER IN APPEAL NO. ITA.30/E/ CIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2015-16 PASSED BY THE RESPONDENTCIT(A)III/2019-20 DATED 14.09.2023 FOR THE YEAR 2015-16 PASSED BY THE RESPONDENT EXHIBIT P40TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) 22682/2023 DATED 25.09.2023W.P.(C) 22682/2023 DATED 25.09.2023