Swapna Manuel v. The Assistant Commissioner Of Income Tax
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.10.2021
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR W.P.NO.23071 OF 2021 AND W.M.P.NO.24285 OF 2021 Swapna Manuel 20/26, Perumal Kovil Street Taramani, Chennai-600 113.
...Petitioner
-Vs.- The Assistant Commissioner of Income tax Central Circle 2(3), Room No.B-5, 'B' Wing Investigation Building, No.46, Mahatma Gandhi Road, Nungambakkam, Chennai-600 034.
... Respondent Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records of the respondent in the assessment order bearing Identification No.ITBA/AST/M/147/2021-22/1036026053(1) dated 29.09.2021 in pan No.BNNPS8194L passed in my case for AY 2016-2017, quashing the same.
For Petitioner : Mr.M.V.Swaroop For Respondent : Mr.A.P.Srinivas Senior standing counsel for Income Tax
O R D E R
Captioned main writ petition has been filed assailing an assessment order dated 29.09.2021 made under Section 144 read with Section 147 of 'The Income-tax Act, 1961 (43 of 1961)' [hereinafter 'IT Act' for the sake of brevity] pertaining to 'Assessment year 2016-2017' [hereinafter 'said AY' for the sake of convenience and clarity] qua writ petitioner. This assessment order shall hereinafter be referred to as 'impugned order' for the sake of convenience and clarity.
2. Notwithstanding very many averments and several grounds raised in writ affidavit filed in support of captioned main writ petition, Mr.M.V.Swaroop, learned counsel for writ petitioner submitted that the impugned order was preceded by a 'show cause notice dated 24.09.2021 bearing reference DIN & Notice No.ITBA/AST/F/142(1)/2021-22/1035876104(1)' [hereinafter 'said SCN' for the sake of convenience and clarity]. To be noted, said SCN has been issued under Section 142(1) of IT Act. Learned counsel submits that said SCN is dated 24.09.2021, it has been digitally signed at 8 minutes past 08.00 p.m. on 24.09.2021 and it calls upon the writ petitioner/Assessee to furnish information on the points or matters specified therein on or before 3 minutes past 11.00 a.m. on 27.09.2021. Learned counsel points out that 24.09.2021 was Friday and 27.09.
2021 was obviously, Monday. Effectively in terms of working days, even if 9.00 a.m. on 27.09.2021 Monday morning is taken as reckoning date and time, writ petitioner had barely 2 hours and 3 minutes to respond to said SCN.
3. Be that as it may, the writ petitioner managed to send a reply i.e., partial reply and sought for two weeks time to submit balance documents. This was on 27.09.2021 under a cover of letter which reads as follows:
4. To be noted, writ petitioner has also sought for reasons for reopening which means the writ petitioner is taking GKN Driveshafts principle route/mechanism [GKN Driveshafts (India) Ltd., Vs. Income-Tax Officer and others reported in (2003) 259 ITR 19] but it may not be necessary to go into that aspect of the matter. Suffice to say that notwithstanding the aforementioned trajectory qua said SCN and partial response of writ petitioner/Assessee and writ petitioner/assessee seeking two weeks time, the impugned order was passed one working day later i.e., on 29.09.2021. This has caused infraction of NJP (Nature Justice Principle) qua impugned order, is learned counsel's say.
5. Mr.A.P.Srinivas, learned Senior standing counsel for Income tax accepted notice on behalf of lone respondent and with the consent of learned counsel on both sides, main writ petition was taken up owing to possibility of disposing of the matter on the aforementioned short point.
6. Learned Revenue counsel submitted that there is no infirmity qua said SCN as the same has been duly issued under Section 142(1) of IT Act. This Court carefully considered the submissions of both sides. It is not a case of infirmity qua said SCN, but it is a case of adequacy of time granted qua said SCN and as to whether that tantamounts to infraction of NJP principle in the case on hand. In the light of the narrative thus far, it is clear that reasonable time has not been given to the writ petitioner/Assessee to respond to said SCN much less ample or adequate time.
Another facet of the matter is, the writ petitioner managed to respond (partially though) and sought for two weeks time to send the other documents, considering the nature of variation, this Court is of the considered view that it is only appropriate that the respondent should have waited for a fortnight for the writ petitioner to send in other documents which has been described as 'balance documents' under cover of letter of writ petitioner dated 27.09.2021. To be noted, this Court has not expressed any opinion or view at this juncture on the request for reason for reopening made by writ petitioner which is GKN Driveshafts principle/route. This is left to the wisdom and discretion of the respondent at this juncture.
7. In the light of the narrative, discussion and dispositive reasoning thus far, this Court is of the considered view that this is a appropriate and a fit case for sending the matter back to respondent for redoing/doing de novo assessment from said SCN stage. Therefore, the following order is passed:
(a) Impugned order being assessment order dated 29.09.2021 made under Section 144 read with Section 147 of 'The Income-tax Act, 1961 (43 of 1961)' [hereinafter 'IT Act' for the sake of brevity] qua writ petitioner is set aside solely on the ground that reasonable time has not been granted to writ petitioner qua preceding SCN i.e., SCN preceding the impugned order being SCN dated 24.09.2021;
(b) As sequitur to the previous limb (though obvious) it is made clear that this Court has not expressed any view (in this order) on the merits of the matter;
(c) The writ petitioner/Assessee shall now file the 'balance documents' and complete the reply within a fortnight from today i.e., on or before 10.11.2021;
(d) Thereafter, the respondent shall redo the assessment and pass assessment order within six weeks therefrom i.e., on or before 22.12.2021. To be noted, request of writ petitioner/Assessee for reasons for reopening (GKN Driveshafts principle) vide 27.09.2021 response is left open and therefore, the same shall also be dealt with within aforementioned six weeks time frame;
8. Captioned main Writ Petition is disposed of with the above directives. Consequently, captioned writ miscellaneous petition is also disposed of as closed. There shall be no order as to costs.
Sd/- Assistant Registrar(CS-VI) // True Copy // Sub Assistant Registrar mk To The Assistant Commissioner of Income tax Central Circle 2(3), Room No.B-5, 'B' Wing Investigation Building, No.46, Mahatma Gandhi Road, Nungambakkam, Chennai-600 034.
+1cc to Mr.A.P.Srinivas, Advocate, S.R.No.55809 W.P.No.23071 of 2021 and W.M.P.No.24285 of 2021 VG-II(CO) RLP(22/11/2021)