Wp(C)/5364/2013 Of O.g.sunil v. The Deputy Commissioner Of Income Tax, Central Circle-2

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934 WP(C).No. 5364 of 2013 (U) --------------------------------------- PETITIONER(S): ---------------------- O.G.SUNIL , 13B, LINK HORIZON MARINE DRIVE, ERNAKULAM, KOZHI 11 BY ADVS.SRI.ANIL D. NAIR SRI.PREM NAVAZ J.R. SMT.NIVEDITA A.KAMATH RESPONDENT(S): -------------------------- 1. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, ERNAKULAM. 2. THE COMMISSIONER OF INCOME TAX, (APPEALS) III, KOCHI- 682 015. 3. TAX RECOVERY OFFICER RANGE-1 C.R BUILDINGS, I.S PRESS ROAD KOCHI 18 R1 BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-03-2013, ALONG WITH WPC. NO.5395 OF 2013 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.5364/2013 APPENDIX PETITIONER(S) EXHIBITS EXT.P1:- COPY OF THE JUDGMENT IN WPC 28880/2011 DATED 31-10-2011. EXT.P2:- COPY OF THE INTERIM ORDER DATED 2-2-2012 IN WPC 28880/2011. EXT.P2(A):- COPY OF THE INTERIM ORDER DATED 20-07-2012 IN WPC 28880/2011. EXT.P3:- COPY OF THE ORDER DATED 17-01-2013 PASSED BY THE SECONDRESPONDENT. EXT.P4:- COPY OF THE NOTICE DATED 3-1-2013 BY THE SECOND RESPONDENT. EXT.P5:- COPY OF THE ADJOURNMENT LETTER DATED 7-1-2013 BY THE PETITIONER. RESPONDENTS' EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c) Nos.5364 & 5395 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of March, 2013 JUDGMENT The issue involved in both these cases is closely inter-linked; thefirst case having been filed by the husband, while the second one, bythe wife.2.The assessment in respect of the petitioners was completedunder Section 153 A read with Section 143 of the Income Tax Act,which was subjected to challenge by filing appeal before the AppellateAuthority. In view of the coercive proceedings pursued in themeanwhile, the petitioners were constrained to approach this Court byfiling W.P.(C)Nos.28880/2011 & 28876/2011. The said writ petitionswere finalised as per Ext.P1 judgment, directing the secondrespondent/Appellate Authority to pass final orders in the appeal withinthe time as stipulated therein. Since the proceedings could not befinalised within the time stipulated, time was sought to be extended byfiling separate applications and the extension of time sought for was granted by this Court as borne by Ext.P2/P2 A. In the course of furtherproceedings, the petitioners were served with a notice of hearing dated3.1.2013 informing the date of hearing scheduled on 7.1.2013. Becauseof some personal inconvenience of the authorised representative,adjournment was sought for as per Ext.P4 dated the same day i.e.7.1.2013, pursuant to which the matter was adjourned to 10.1.2013, asdiscernible from the materials on record. It is the case of the petitionersthat, the petitioners appeared through their authorised representative on10.1.203, but the second respondent was absent on that day and thepetitioners were let known that they would be intimated as to the nextdate of hearing. However, without any further notice, the proceedingscame to be finalised vide Ext.P3 order dated 17.1.2013 passed by thesecond respondent, behind the back of the petitioners, which in turn isunder challenge in this writ petition. 3.A statement has been filed by the learned Standing Counselon behalf of the respondents pointing out that many an opportunity ofhearing was given to the petitioners, despite which the same was notproperly made use of and it was in the said circumstance, that the 3.A statement has been filed by the learned Standing Counselon behalf of the respondents pointing out that many an opportunity ofhearing was given to the petitioners, despite which the same was notproperly made use of and it was in the said circumstance, that the second respondent was constrained to finalise the proceedings as perExt.P3 order on 17.1.2013. The particulars of the various postingshave been given in paragraph 3, which shows the last posting on10.1.2013. However, it is conceded in paragraph 4 that the secondrespondent, due to some urgent personal reasons, was on leave on10.01.2013 and that the petitioners could have filed their submissions,if any, in writing, for which the office was specifically instructed tohave accepted the same. It is also mentioned in the said paragraph thatthe notice dated 3.1.2013 clearly specified “ attendance is notnecessary if you wish that the appeal may be decided on the basisof written submissions”. This is sought to be relied on by the revenueto contend that the petitioners did not file any written submission eitheron 10.1.2013 or even thereafter till the proceedings were finalised on17.1.2013. 4.This Court finds it difficult to accept the above proposition. The notice dated 3.1.2013 only alerted the petitioners of their right todispense with the chance to have personal hearing and to file writtensubmissions, if the appellant desired to have the matter decided W.P.(C)No.5364, 5395 of 2013 accordingly on the basis of written submissions, upon which theattendance was not necessary. It was all the more open for thepetitioners to have appeared and presented the arguments throughauthorised representative, without having the necessity to file anywritten submissions. It was accordingly that the petitioners werepresent in the office of the second respondent on 10.1.2013. This beingthe position, there was no need, necessity or occasion for the petitionersto have submitted any written submissions either on 10.1.203 or on anyother date before 17.1.203, so long as the petitioners desired the matterto be presented through the authorised representative. This Courtfinds that the proceeding finalised by the second respondent by passingExt.P3 order is not liable to be sustained any more, for having virtuallydenied an effective opportunity of hearing. Accordingly, theimpugned orders - Ext.P3 in both the writ petitions, are set aside andthe second respondent is directed to reconsider the matter and passappropriate orders in accordance with law, after giving an effectiveopportunity of hearing to the petitioners. The proceedings as aboveshall be finalised at the earliest, at any rate within 'three months' from W.P.(C)No.5364, 5395 of 2013 the date of receipt of a copy of this judgment. It is made clear that thepetitioners shall make appropriate arrangements to appear in thehearing to be fixed by the second respondent, either in person orthrough an authorised representative, without seeking for anyadjournment, unless for compelling reasons to the satisfaction of thesecond respondent. The interim order passed by this Court videExts.P2/P2A will continue till such time. Both the writ petitions are allowed to the above extent. No cost. P.R.RAMACHANDRA MENONJUDGE sv. W.P.(C)No.5364, 5395 of 2013