SAFFERULLA ELLYASU KUNJU, vs. INCOME TAX OFFICER,

Petitioner complains against the assessment order on two grounds; (i) sufficient period of time was not granted to give a proper reply for the show-cause notice and (ii) even though petitioner had filed a reply, the same was not considered, thereby violating the principles of natural justice.

I have heard Adv.Anil D Nair, learned counsel for the petitioner as well as Adv.Christopher Abraham, learned Standing Counsel for the respondents.

Petitioner had replied to the show-cause notice issued on 27.09.2021, and that too, in an exhaustive manner, I am of the view that the contention raised by the petitioner regarding absence of sufficient time with respect to the show-cause notice has no basis on the facts of the case, since, even within the limited period, petitioner had furnished his reply.

However, I find merit in the contention raised by the petitioner regarding non-consideration of the explanation submitted. As mentioned earlier, an exhaustive reply was submitted by the petitioner within the limited time available to him. The reply submitted by the petitioner is produced as Ext.P5 which runs into several pages. Unfortunately, while considering the reply, the assessing officer has discarded the explanation offered by the petitioner in one sentence as follows:- 'On perusal of the same it was (sic) observed that assessee is not able to produce any documentary evidence which may prove his claim beyond doubt to the satisfaction of the assessing officer”.

There is a clear indication of non-application of mind in the above quoted observation. An opportunity for filing an explanation to the show cause through a notice has a purpose. The contentions raised by the assessee will have to be considered by the assessing officer and either accepted or rejected the same with reasons. Reasons being the soul of every decision, absence of reasons indicates clear non-application of mind thereby rendering the order susceptible for challenge on grounds of violation of natural justice. The necessity to consider the objections raised by the assessees is all the more significant at the stage of assessment, since it is one of the edifices on which the right or obligation of an assessee commences.

On a consideration of the assessment order Ext.P7, I find that the same is vitiated on account of violation of the principles of natural justice due to clear non-application of mind. Accordingly the same is set aside. The assessing officer is directed to consider the explanation offered by the petitioner and pass fresh orders of assessment, within a period of three months from the date of receipt of a copy of this judgment, after issuing notice of hearing to the petitioner.

Since the assessment order is set aside, consequently Ext.P8 and Ext.P9 notices for penalty shall also stand set aside. The writ petition is allowed as above. BECHU KURIAN THOMAS JUDGE vps