A. E. VARGHESE vs. THE COMMISSIONER OF INCOME TAX (APPEALS)

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WP(C)/35663/2023HC KeralaKLHC01080564202310 November 2023Author: HONOURABLE MR. JUSTICE D. K. SINGH5 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the petitioner's submission regarding non-receipt of notice for the appeal hearing before the Commissioner of Income Tax (Appeals) lacks substance. The Court noted that the Department's system is automated, with notices being uploaded to the portal and also sent via email and SMS alerts to the details provided by the assessee. Consequently, the Court found no merit in the petitioner's argument that he did not receive intimation. The writ petition was dismissed. However, the Court granted the petitioner liberty to file an appeal before the Income Tax Appellate Tribunal (ITAT) within three weeks, directing the ITAT to consider the appeal expeditiously without raising the issue of limitation.

What were the facts?

The petitioner, A.E. Varghese, is challenging an order dated 31.8.2023 passed by the Commissioner of Income Tax (Appeals) under Section 250 of the Income Tax Act, 1961. This order was passed in an appeal against an assessment order dated 28.12.2017 under Section 143(3) for assessment year 2015-16. During the assessment, a cash deposit of Rs. 1,24,25,000/- was made in savings accounts with ICICI Bank and Canara Bank. The petitioner failed to prove the source for Rs. 53,03,000/-, which was added to his income. The petitioner contends that neither he nor his counsel received notice of the appeal hearing, despite providing his counsel's postal address. The Department's system uploads notices to the portal and sends them via email and SMS.

What were the issues?

1. Whether the petitioner/assessee received proper notice of the hearing of his appeal before the Commissioner of Income Tax (Appeals), as required under Section 250 of the Income Tax Act, 1961? Assessee's Contention: The petitioner argues that neither he nor his counsel received any notice of the hearing of the appeal before the first respondent, despite providing the counsel's postal address. They claim this lack of notice vitiates the appellate order. Revenue's Contention: The revenue contends that the notice system is automated, with notices uploaded to the portal and also sent via email and SMS alerts to the provided contact details. They argue that these automated processes ensure intimation, and therefore, the petitioner's claim of non-receipt is without substance.

Which sections of the Income-tax Act were involved?

Section 250,Section 143(3)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 WP(C) NO. 35663 OF 2023 PETITIONER/S: A. E. VARGHESE AGED 65 YEARS S/O. A. E. EDICHANDI, ARAKKANATIL HOUSE, ODAMPALLY ROAD, THOPPUMPADY, ERNAKULAM, KOCHI, PIN - 682005 BY ADVS. ASWIN GOPAKUMAR ADITYA VENUGOPALAN ANWIN GOPAKUMAR NIKITHA SUSAN PAULSON MAHESH CHANDRAN SARANYA BABU SHALLET K. SAM TOMY THOMAS RESPONDENT/S: 1 THE COMMISSIONER OF INCOME TAX (APPEALS) THE INCOME TAX DEPARTMENT NATIONAL FACELESS ASSESSMENT CENTRE (NFAC), DELHI, PIN - 110001 2 INCOME TAX OFFICER NC WARD 2(5), NON-CORPORATE RANGE, XVI/997, A-21, 2ND FLOOR, L. G. TOWERS, P.T. JACOB ROAD, THOPPUMPADY, KOCHI, PIN - 682005 BY ADVS. SRI.CHRISTOPHER ABRAHAM SRI.P.R.AJITH KUMAR(K/000708/1998) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 35663 OF 2023 2

J U D G M E N T Heard Ms.Nikitha Susan Paulson, learned counsel for the petitioner, and Sri.P.R.Ajithkumar, learned Standing Counsel for the Income Tax Department.

2.

Challenge in this writ petition is the order dated 31.8.2023, Ext.P2, passed under Section 250 of the Income Tax Act, 1961 ('Act', for short) by the first respondent in an appeal filed against the assessment order dated 28.12.2017 under Section 143(3) of the Act. Learned counsel for the petitioner vehemently argues that even though the petitioner had given postal address of his counsel, it appears that neither his counsel nor the petitioner did receive notice of hearing of the appeal.

3.

Assessment order is of the assessment year 2015-16. The assessment got completed on 28.12.2017 by the assessing officer. During the course of the assessment, it was observed that the petitioner had a cash deposit of Rs.1,24,25,000/-

WP(C) NO. 35663 OF 2023 3 in the savings bank accounts with the ICICI Bank (Rs.1,15,25,000/-)

and Canara

Bank (Rs.9,00,000/-). Out of the aforesaid amount, since the petitioner/assessee failed to prove source for Rs.53,03,000/-, the said amount was added as income of the petitioner/assessee. Aggrieved by the said order, the petitioner filed appeal. E-mail address of the Chartered Accountant of the petitioner and phone number of the petitioner were given, which are available/reflected in the portal. The argument of the learned counsel for the petitioner that the petitioner did not receive intimation regarding hearing of the appeal is liable to be rejected, inasmuch as under the system followed, every notice is not only uploaded in the portal, but also sent by the Department through the e-mail address given by the assessee with real time SMS alert in the mobile number provided by the assessee. These are automated system without any humanitarian efforts. Therefore, I find no substance in the submission of the learned counsel for the petitioner that the petitioner did not WP(C) NO. 35663 OF 2023 4 receive intimation/notice regarding hearing of the appeal. The present writ petition is dismissed, as there has been no substance.

4.

However, it will be open to the petitioner to take recourse to the remedy available under the statute before the Income Tax Appellate Tribunal against the impugned appellate order. If the petitioner files appeal before the ITAT within a period of three weeks, the ITAT shall consider the appeal and take a decision expeditiously, in accordance with law, without going into the question of limitation. With the aforesaid observations, the present writ petition is dismissed. Interlocutory application, if any, in the present writ petition stands dismissed. DINESH KUMAR SINGH

JUDGE jg

WP(C) NO. 35663 OF 2023 5

Appendix — schedule of exhibits
APPENDIX OF WP(C) 35663/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE FORM 35 APPEAL FILED BY THE PETITIONER Exhibit P2 A TRUE COPY OF THE ORDER DATED 31.08.2023 BEARING DIN & ORDER NO. ITBA/ NFAC/S/250/2023- 24/1055633791(1) ISSUED BY RESPONDENT NO. 1 Exhibit P3 A TRUE COPY OF THE SCREENSHOT OF THE INCOME TAX PORTAL OF THE PETITIONER Exhibit P4 A TRUE COPY OF THE DEMAND NOTICE DATED 16.10.2023 BEARING DIN NO. ITBA/COM/F/17/2023- 24/1057074299(1)

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