Wp(Md)/10617/2021 Of Manickam Subramanian v. Assistant Commissioner Of Income Tax

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 05.08.2021CORAM THE HON'BLE MR.JUSTICE R.SURESH KUMAR W.P.(MD)No.10617 of 2021and W.M.P(MD).No.8288 of 2021(Through Video Conference) Manickam Subramanian Assistant Commissioner of Income Tax,Central Circle-2,Trichy. Prayer: Writ Petition is filed under Article 226 of Constitutionof India, to issue a Writ of Certiorari, calling for the recordson the files of the respondent in Din & Order No:ITBA/AST/S/143(3)/2021-22/ 1032389648(1) dated 13.04.2021 and quash the same asbeing an order passed contrary to the principles of naturaljustice.For Petitioner : Mr.R.Senniappan ORDER Prayer sought for herein is for a Writ of Certiorari, callingfor the records on the files of the respondent in Din & OrderNo:ITBA/AST/S/143(3)/2021-22/ 1032389648(1) dated 13.04.2021 andquash the same. 2. On 23.06.2018, the Revenue received an information from thepolice concerned that there has been seizure of money to theextent of more than Rs.2,00,00,000/- (Rupees two crores only) fromthe petitioner's premises, pursuant to which the revenue conductedsearch under Section 132 of the Income Tax Act, 1961, (hereinafterreferred to as “the Act”) on 26.06.2018. During that search,statement also had been obtained from the Assessee under Section132(4) of the Act. 3. Pursuant to which belatedly the Assessee filed a returnonly on 23.08.2019. The case was taken up for scrutiny and anotice under Section 143(2) of the Act was issued on 01.03.2021.https://hcservices.ecourts.gov.in/hcservices/Because the revenue found in the return submitted by the Assessee dated 23.08.2019, since had declared the amount of taxable incomeas only Rs.6,02,050/-(Rupees Six lakhs two thousand and fiftyonly) such notice under Section 143(2) was issued. 4. Pursuant to the said notice, the Assessee requested fortime and a time was given till 05.03.2021 and on 08.03.2021, thepetitioner along with Auditor had appeared and still he wantedsome more time accordingly, the time was given upto 20.03.2021.Evethough these times have been given to the Assessee, theAssessee could not produce the relevant documents required by therevenue and ultimately, on 22.03.2021, a final opportunity wasgiven to the Assessee by the revenue to produce the followingdocuments on or before 02.04.2021 by notice dated 29.03.2021: “You are requested to furnish the following details onor before 02.04.2021. 1.Evidence like PAN, Aadhar etc., to prove theidentity of the person. 2.Details of Business, profession, Income taxassessment records, details of assets, Liabilities, BankA/c details to prove credit worthiness.3.Nature of the transactions with these persons alongwith reasons for cash transaction. 4.You are also requested to produce these persons forexamination on oath.” 5. At this juncture, it is the case of the Assessee that thisnotice dated 29.03.2021 was received only on 09.04.2021 by theAssessee, therefore, on the said date, the e-communicationrequesting ten days time had been given by the Assessee to therevenue, where he made the following request: “with reference to your above referred notice, wewish to submit that a portion of details required byyour goodselves have already been submitted and I havecontacted the parties to provide other details. There aresome delay in getting the details and many parties areafraid to come out due to corona pandemic. Hence, Irequest your goodselves to grant me atleast 10 days timefrom today to provide details and request for any form ofconfirmation other than physical appearance due to coronapandemic. Yours, Truly, M.Subramanian.” “with reference to your above referred notice, wewish to submit that a portion of details required byyour goodselves have already been submitted and I havecontacted the parties to provide other details. There aresome delay in getting the details and many parties areafraid to come out due to corona pandemic. Hence, Irequest your goodselves to grant me atleast 10 days timefrom today to provide details and request for any form ofconfirmation other than physical appearance due to coronapandemic. Yours, Truly, M.Subramanian.” 6. However the revenue, since the Assessee had not respondedto the final notice dated 29.03.2021, furnishing reply on orbefore 02.04.2021, had decided to proceed and accordingly thescrutiny assessment order under Section 143(3) was issued on13.04.2021 as against which the petitioner filed the present writpetition. https://hcservices.ecourts.gov.in/hcservices/ 7. Heard Mr.R.Senniappan, learned counsel appearing for thepetitioner, who mainly made a contention that only on the groundof violation of principle of natural justice, as no opportunityhad been given or personal opportunity of being heard had beengiven to the Assessee, the petitioner had invoked theextraordinary jurisdiction of this Court under Article 226 of theConstitution of India and filed this writ petition. 8. In this context, the learned counsel would contend thatunder the notice dated 29.03.2021, various documents were soughtfor nearly about 10 years business of the persons from whom theamount has been received by the petitioner at the relevant pointof time, and since the revenue directed the petitioner/Assessee toproduce those persons for personal examination on oath before theauthority concerned of the revenue, that could not be madepossible for the petitioner because, during that time, due toPandemic, it had a tough time for the petitioner and others tocommunicate and to come before the revenue for personalexamination on oath. 9. More over, since lot of details were sought for by therevenue in the notice dated 29.03.2021, the same could not beimmediately collected, hence, ten days time was sought for by thee-communication of the petitioner dated 09.04.2021. However,without considering the said request, since hurriedly the impugnedorder of assessment was passed on 13.04.2021, the same is liableto be interfered with on the only ground of violation ofprinciples of natural justice. Therefore, the learned counsel forthe petitioner contended that the impugned order is liable to beinterfered with. 10. Per contra, Mr.N.Dilip Kumar, learned Senior StandingCounsel, appearing for the respondent would submit that, thoughhuge amount of hot cash were seized from the premises of thepetitioner and subsequently, Section 132 search also was conductedby the revenue authority and statement was also obtained from theAssessee under Section 132(4) of the Act, based on which, when therevenue expected a proper declaration and return in this regard,the Assessee since had filed the return belatedly in the year 2019only for a sum of Rs.6,02,050/-.(Rupees Six lakhs two thousand andfifty only), therefore, the case was taken as a scrutiny case andhence notice was issued under Section 134(2) of the Act. When thatbeing so, the source from whom huge money had been availed by thepetitioner should have been explained before the revenue authoritywith supporting documents and in this regard, an individualopportunity had been given to the Assessee and the same has nothttps://hcservices.ecourts.gov.in/hcservices/been utilised by the Assessee and ultimately, final tax order was given by way of notice dated 29.03.2021, even the same also hadnot been utilised and therefore, the revenue decided to proceedagainst the petitioner and pass the scrutiny assessment order,which is impugned herein. Therefore, the learned Senior StandingCounsel would submit that the said order does not require anyinterference from this Court on the ground of violation ofprinciples of natural justice. In this context, if at all, thepetitioner is aggrieved, he can file an appeal as provided underthe Act before the Commissioner of Income Tax and before doingthat since the petitioner has approached this Court for thealleged reason of violation of principles of natural justice, thiswrit petition need not be entertained and therefore it can bedismissed, he contended. 11. I have considered the rival submissions made by thelearned counsel appearing for the parties and have perused thematerials placed before this Court. 12.Though some earlier opportunities were given up to26.03.2021 to the petitioner/Assessee, within which period whetherthe documents sought for by the revenue can be collected by thepetitioner and produced the same before the authority itself is aquestion. 13. However, in the last notice dated 29.03.2021, severaldetails since had been asked for as quoted hereinabove from theAssessee, it should have been produced on or before 02.04.2021,that is, within two or three days. Within the shortest possibletime, during the Pandemic period, it can not be reasonablyexpected that the Assessee would be able to collect all thesedocuments and produce before the revenue. 14. In this context, it is a further case of the Assesseethat, the said notice dated 29.03.2021 had been received by thepetitioner only on 09.04.2021 and on that ground a request hadbeen made through e-communication that ten days time should begiven to the petitioner. However, before which, on 30.04.2021,since the impugned order has been passed, this Court feels that,some more opportunity could have been given to the petitionerAssessee to produce those documents as has been sought for by thenotice of the revenue dated 29.03.2021. In that view of thematter, this Court feel that the impugned assessment order can beinterfered with and the matter can be remitted back to the revenuefor reconsideration after giving an opportunity to the petitionerto produce those documents as claimed by the revenue under thesaid notice dated 29.03.2021 within a reasonable time which shouldalso be fixed by this Court. https://hcservices.ecourts.gov.in/hcservices/ https://hcservices.ecourts.gov.in/hcservices/ 15. In that view of the matter, this Court is inclined todispose of this writ petition with the following order:“that the impugned order is hereby set aside and the matter isremitted back to the assessing authority for reconsideration.While reconsidering the same, three weeks time is hereby given tothe Assessee to produce all the documents as required by therevenue, by notice dated 29.03.2021, including the production ofthe persons mentioned by the Assessee in the list of persons fromwhom the amount had been availed by the petitioner Assessee,before the revenue. In this regard, a date within three weeks canbe fixed by the revenue by giving a notice to the petitionerenabling the petitioner to submit those documents and to producethe persons mentioned therein in the notice dated 29.03.2021. Oncesuch documents are produced and the persons were also produced forexamination on oath before the revenue, the revenue can proceed todecide the matter finally and final assessment order in thisregard can be passed thereafter by the revenue. It is made clearthat within a period of three weeks from the date of receipt of acopy of this order, if the Assessee is not able to comply with theaforesaid and place the documents and produce the persons forexamination on oath, it is open to the respondents revenue toproceed in the matter and pass final orders based on the availablerecords.” 16. With these observations and directions, this writ petitionis disposed of. However, there shall be no order as to costs.Consequently, connected miscellaneous petition is closed. PJL Note: In view of the present lock down owing to COVID-19pandemic, a web copy of the order may be utilized forofficial purposes, but, ensuring that the copy of theorder that is presented is the correct copy, shall be theresponsibility of the Advocate/litigant concerned. https://hcservices.ecourts.gov.in/hcservices/ W.P.(MD)No.10617 of 2021 ToAssistant Commissioner of Income Tax,Central Circle-2, Trichy. +1 CC to M/s.S.RAJA JEYA CHANDRA PAUL, Advocate ( SR-25422[F] dated05/08/2021 )+1 CC to M/s.N.DILIPKUMAR, Advocate ( SR-25457[F] dated 06/08/2021 ) W.P.(MD)No.10617 of 2021 05.08.2021 CN(28.07.2021) 6P 4C https://hcservices.ecourts.gov.in/hcservices/