MUHAMMED KALLAT, vs. INCOME TAX OFFICER,

Petitioner/assessee is a Non Resident Indian (NRI). In respect of the relevant assessment years i.e. 2013-14 and 2014-15, the assessee did not file return of his income. The petitioner/assessee along with Mr. Aboobacker had constructed a Mall at Mananthavady in the name and style of M/s. Mall of Kallat. In the said Mall, the petitioner/assessee owns 75% share. ADIT Investigation wing, Kozhikode conducted verification on 18.04.2019 and information was gathered relating to the information made by the petitioner in the said Mall. As per the details obtained, total investment in the Mall from 2012 to 2014 was Rs. 3.97 crores and the assessee had invested more than Rs. 40,00,000/- in the assessment year 2013-14 and Rs. 50,00,000/- during the assessment year 2014-15. 2. The petitioner being an NRI, he is an “eligible assessee” under Sub-Section 15 (b) (ii) of Section 144 C of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’ for short). The draft assessment order was prepared by the assessing authority and the same was served on the petitioner on 30.05.2023 online, giving thirty days time

Mr. Anil D. Nair, learned Counsel for the petitioner submits that the petitioner had filed objection to the draft assessment orders in Exhibit P-1 within thirty days. However, by inadvertent mistake, the objection was not filed in the correct form but, this was a defect which could have been cured by the petitioner if it was pointed out to him. Therefore, it cannot be said that the petitioner had not filed the objection within thirty days as observed in the impugned assessment orders. The petitioner should have been provided an opportunity for curing the defects in filing the objections to the draft assessment order which was not done and no opportunity of hearing was provided to the petitioner on the said ground that no objection against the draft assessment order under Section 144C(3) of the Act was filed. He therefore, submits that the impugned assessment

Mr. P. G. Jayashankar, learned Senior Standing Counsel for the Income Tax Department has submitted that Form No. 35A is provided for filing the objection to the draft assessment order under Section 147(3). However, the objection was filed in Form 34BC and, therefore, the assessing authority has taken the view that no objection was filed as mandated under Section 144C(3).

I have considered the submissions. It is not in dispute that the petitioner had filed the objection on 30.06.2023. However, the said objection was filed in Form 34BC instead of 35A. The petitioner ought to have been given an opportunity to cure the defects. However, this opportunity was not given to the petitioner for curing the defects and the Disputes Resolution Panel considered that no objection was filed within thirty days as it was not filed in the proper form.

There was objection filed by the petitioner. The defect was curable defect and the petitioner ought to have been given an WP(C) NOS. 24777 & 24872 OF 2023 6 opportunity to file objection in the correct form. Therefore, I am of the view that by not giving an opportunity to cure the defect in filing the objection to the draft assessment order, the Dispute Resolution Panel as well as the Assessing Officer have committed an error of law and there has been a violation of the principles of natural justice. Thus, the present writ petition is allowed. The petitioner is permitted to file objection dated 30.06.2023 in respect of the assessment years 2013-14 and 2014-15 within a period of two weeks and if the objection dated 30.06.2023 is filed within two weeks in correct form i.e. Form 35A, the Disputes Resolution Panel shall consider the objection and, thereafter, pass an order after hearing the petitioner. Once the Disputes Resolution Panel passes an order after taking objection on the draft assessment order, the assessing authority shall proceed to finalise the assessment in respect of the assessment years 2013-14 and 2014-15. With the aforesaid directions, the present writ petition is allowed. DINESH KUMAR SINGH JUDGE Svn