Wp(C)/4463/2024 Of Chakkunnath Gopi v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 27 DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 WP(C) NO. 4463 OF 2024 PETITIONER: CHAKKUNNATH GOPIAGED 61 YEARS01 GOPIKAS, VENGANELLUR, CHELAKKARA, THRISSUR DISTRICT,KERALA, INDIA, PIN - 680586 BY ADVS.ANIL D. NAIRTELMA RAJU RESPONDENTS:1THE INCOME TAX OFFICERWARD 2 (2), THRISSUR, PIN-680 001, PIN - 6800012COMMISSIONER OF INCOME TAX (APPEALS),NATIONAL FACELESS ASSESSMENT CENTRE (NFAC),NEW DELHI, PIN - 110001 BY ADVS.CHRISTOPHER ABRAHAMP.R.AJITH KUMAR(K/000708/1998) OTHER PRESENT: SRI.CHRISTOPHER ABRAHAM-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2024,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T This writ petition has been filed seeking the following reliefs: “i)call for the records leading to issuance of Exhibit P5order and quash the same by issuing a writ of certiorari:ii)Pending hearing and final disposal of the writ petition,this Hon'ble Court be pleased to grant stay of all recoveryproceedings pursuant to Exhibit P1. iii)Issue such other and further reliefs as this Hon'bleCourt may deem fit and proper in the interest of justice.” 2.Heard Sri.Anil D. Nair, learned Senior Counsel assisted bySri.Adithya Unnikrishnan and Sri.Chirstopher Abraham, learnedCentral Counsel for the Income Tax Department. 3.The present writ petition has been filed impugning Ext.P5order passed by the 2[nd] respondent in an appeal instituted by thepetitioner against the assessment order dated 27.12.2018 passedunder Section 143(3) of the Income Tax Act, 1961. The petitionerwas issued notice who opted for the virtual hearing in the appealby notice dated 19.02.2023. The said notice has been placed onrecord by the standing counsel on behalf of the respondent byExt.R1(a). 4.In pursuance to the said notice, the petitioner opted forpersonal hearing and also intimated the authorised person whowill attend the virtual hearing through video conference.However, no link was generated for availing the said opportunityof virtual hearing to the petitioner and he had not subscribed tothe personal hearing through video conferencing in the prescribed form. 5.It is not in dispute that the petitioner had made therequest, also the credential of authorised representative alongwith his e-mail ID while intimating to the Department, but thevirtual hearing has been denied only on the ground that it wasnot in the prescribed form. 6.The form in which the virtual hearing has to be subscribedis a matter of procedure and not a substantive law. Theprocedure is always handmade for doing the complete justicebetween the parties. Procedure cannot take away thesubstantive right of a person, if the person is otherwise eligiblefor substantive right of personal hearing. Considering this aspect,the petitioner was not afforded an opportunity of being heard.The present writ petition is allowed and the impugned order isset aside and the matter is remanded back to the 2[nd] respondentto issue fresh notice to the petitioner for availing the opportunityof personal hearing and this time, the petitioner should notcommit any mistake. He should opt for personal hearing inprescribed form. With the afore said direction, the present writ petition standsallowed. Sd/- DINESH KUMAR SINGHJUDGE 4 APPENDIX OF WP(C) 4463/2024 PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF ASSESSMENT ORDER DATED 27.12.2018 IN THE YEAR2016-172016-17 EXHIBIT P2TRUE COPY OF FORM NO.35 ALONG WITH GROUNDS OF APPEAL EXHIBIT P3TRUE COPY OF ARGUMENT NOTE FILED AND UPLOADED AS EVIDENCEDBY THE ACKNOWLEDGMENTBY THE ACKNOWLEDGMENT EXHIBIT P4TRUE COPY OF THE ACKNOWLEDGMENT EXHIBIT P4TRUE COPY OF THE LETTER DATE\D 24.10.2023 SENT BY THE (A)PETITIONER TO THE 2ND RESPONDENT(A)PETITIONER TO THE 2ND RESPONDENT With the afore said direction, the present writ petition standsallowed. Sd/- DINESH KUMAR SINGHJUDGE 4 APPENDIX OF WP(C) 4463/2024 PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF ASSESSMENT ORDER DATED 27.12.2018 IN THE YEAR2016-172016-17 EXHIBIT P2TRUE COPY OF FORM NO.35 ALONG WITH GROUNDS OF APPEAL EXHIBIT P3TRUE COPY OF ARGUMENT NOTE FILED AND UPLOADED AS EVIDENCEDBY THE ACKNOWLEDGMENTBY THE ACKNOWLEDGMENT EXHIBIT P4TRUE COPY OF THE ACKNOWLEDGMENT EXHIBIT P4TRUE COPY OF THE LETTER DATE\D 24.10.2023 SENT BY THE (A)PETITIONER TO THE 2ND RESPONDENT(A)PETITIONER TO THE 2ND RESPONDENT EXHIBIT P4TRUE COPY OF THE LETTER OF AUTHORIZATION DATED 23.10.2023.(B)(B) EXHIBIT P53. TRUE COPY OF ORDER DATED 11.12.2023 BYTHE 2ND RESPONDENT.RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R1(A)CIT(A) S FIRST LETTER DATED 19.10.2023 GRANTING OPPERTUNITY FOR VIDEO CONFRENCINGOPPERTUNITY FOR VIDEO CONFRENCING EXHIBIT R1ATTACHMENT DESCRIBING THE PROCEEDURE FOR SEEKING VIDEO (B)CONFRENCING SENT ALONG WITH LETTER DATED 19.10.2023(B)CONFRENCING SENT ALONG WITH LETTER DATED 19.10.2023 EXHIBIT R1(C)LETTER OF THE PETITIONER DATED 24.10.2023 RESPONDING TO THE LETTER OF THE CIT(A) DATED 19.10.2023THE LETTER OF THE CIT(A) DATED 19.10.2023 EXHIBIT R1(D)LETTER DATED 21.11.2023 GRANTING SECOND OPPERTUNITY FORVIDEO CONFRENCING TO THE PETITIONERVIDEO CONFRENCING TO THE PETITIONER