PULIYASSERY SASIDHARAN vs. THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX OFFICER

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WP(C)/11459/2022HC KeralaKLHC01023604202201 July 2022Author: HONOURABLE MR. JUSTICE GOPINATH P.4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the petitioner should be granted an opportunity to respond to the draft assessment order before finalization. Consequently, the assessment order (Ext.P5) was set aside. The respondent was directed to provide a link for the petitioner to upload his reply. If the petitioner submitted a reply within five days of the link being provided, the assessment was to be completed afresh, considering the reply and affording an opportunity of hearing if requested. If no reply was submitted within the stipulated time, the benefit of the judgment would not apply, and Ext.P5 would stand restored. The court's reasoning was based on the acknowledgment of the petitioner's request for adjournment as evident from Exts.P2, P3, and P4, indicating that the petitioner's right to respond was not adequately addressed.

What were the facts?

The petitioner, Puliyassery Sasidharan, filed a writ petition before the High Court of Kerala challenging an assessment order for the assessment year 2015-16, issued under Section 144B of the Income Tax Act, 1961 (Faceless Assessment). The petitioner received a draft assessment order (Ext.P1) and requested time to submit a reply, as evidenced by Exts.P2 and P3. Despite this request, which was acknowledged (Ext.P4), a final assessment order (Ext.P5) was issued on March 7, 2022, without considering the adjournment request. The revenue contended that the petitioner was given ample opportunities and was purposefully delaying proceedings, also pointing to the alternative remedy of appeal.

What were the issues?

1. Whether the assessment order passed under Section 144B of the Income Tax Act, 1961, is vitiated by reason of not considering the petitioner's request for adjournment to file a reply to the draft assessment order? (Mixed question of law and fact) Assessee's Contention: The petitioner argued that the final assessment order was passed without considering his request for time to respond to the draft assessment order, despite acknowledgment of the request. The petitioner relied on the fact that Exts.P2, P3, and P4 indicated a request for adjournment and its acknowledgment. Revenue's Contention: The respondent department argued that the petitioner was provided with all possible opportunities. They submitted that a notice under Section 142 was served via speed post after the petitioner failed to respond to an email notice. The department alleged that the petitioner was deliberately delaying the proceedings and thus not entitled to relief under Article 226 of the Constitution. They also highlighted the availability of an effective remedy of appeal.

Which sections of the Income-tax Act were involved?

Section 144B,Section 142

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
W.P(C).11459/22 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944 WP(C) NO. 11459 OF 2022 PETITIONER/S: PULIYASSERY SASIDHARAN AGED 62 YEARS S/O. RAGHAVAN, NEAR MERCY COLLEGE, VENKITESWARA GARDENS, PALLAKKAD 678 641 BY ADVS. HARISANKAR V. MENON MEERA V.MENON RESPONDENT/S: THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX OFFICER NATIONAL E-ASSESSMENT CENTRE, DELHI 110 001 BY ADVS. P.K.RAVINDRANATHA MENON (SR.) JOSE JOSEPH, SC, INCOME TAX DEPARTMENT, KERALA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).11459/22 2

JUDGMENT Petitioner has approached this Court aggrieved by Ext.P5 order of assessment for the assessment year 2015-16 issued under Section 144B of the Income Tax Act (Faceless Assessment).

2.

It is the submission of the learned counsel for the petitioner that on receipt of Ext.P1 draft assessment order, the petitioner requested for time to submit a reply, as is evident from Exts.P2 and P3. It is submitted that despite asking for an adjournment almost immediately after receiving Ext.P1 and despite the fact that the same was acknowledged by Ext.P4, Ext.P5 order of assessment was issued on 07.3.2022 without noticing the fact that the petitioner had requested for an adjournment.

3.

The learned Standing Counsel for the respondent department would contend that every possible opportunity was given to the petitioner. It is submitted that prior to the transfer of files to the Faceless Assessment Centre, the petitioner had been issued with notice under Section 142 which had been served on the petitioner by speed post. It is submitted that the delivery of notice earlier by speed post was on account of the fact that the petitioner failed to respond to a notice sent via email. It is submitted that the petitioner is purposefully delaying the proceedings and is, therefore, not entitled to any relief under Article 226 of the Constitution of India. It is also pointed out that the petitioner has an effective remedy of appeal against Ext.P5 order.

4.

Having heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the department and taking note of Exts.P2, P3 and P4, I am of the opinion that the petitioner can be granted an opportunity to respond to Ext.P1 draft assessment order before the proceedings are finalised against him. Therefore, Ext.P5 will stand set aside with a direction to the respondent to provide a link to enable the petitioner to upload his reply. If the petitioner submits a reply within five days from the date on which the link is provided to him, the assessment shall be completed afresh after considering the reply given by the petitioner and after affording an opportunity of hearing to the petitioner, if the same is requested for. If the petitioner does not submit a reply within five days from the date on which a link is provided to him, as above, the petitioner will not be entitled to the benefit of this judgment and in that event Ext.P5 will be treated as restored.

The writ petition is disposed of as above. GOPINATH P. JUDGE okb/1.7.22 //// P.S. to Judge

Appendix — schedule of exhibits
APPENDIX OF WP(C) 11459/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF SHOW CAUSE NOTICE ISSUED BY THE RESPONDENT Exhibit P2 COPY OF REQUEST SUBMITTED BY THE PETITIONER Exhibit P3 COPY OF SCREENSHOT OF THE WEBPAGE OF THE DEPARTMENT Exhibit P4 COPY OF SYSTEM GENERATED E MAIL Exhibit P5 COPY OF ORDER ISSUED BY THE RESPONDENT FOR THE YEAR 2015-16

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