Anil Kumar Sunil Kumar Saraf vs Commissioner of Income Tax and Another

Om Parkash, J.—This is a writ petition under Article 226 of the Constitution by the petitioner who was assessed under the Income Tax Act, 1961.

The assessment order was made ex parte and that was challenged before the. Appellate Assistant Commissioner on the ground that the Income Tax Officer was not justified in having made an ex parte assessment inasmuch as the petitioner was prevented by sufficient cause from having appeared before him. In support of this contention, the petitioner also produced a medical certificate before the Appellate Assistant Commissioner, who disbelieved the same.

The petitioner filed a revision before the Commissioner u/s 264 of the Act of 1961, raising one of the grounds that the Appellate Assistant Commissioner was in error in having rejected the medical certificate. The contention of learned counsel for the petitioner is that no finding whatsoever has been recorded by the Commissioner on this ground and that had the Commissioner given a finding on this ground and agreed with the petitioner, then there would have been no need for the Commissioner to enter into the merits of the case. Upon perusal of the order of the Commissioner (annexure "4" to the writ petition), it appears to be correct that the Commissioner has omitted to record any finding on the ground that the Appellate Assistant Commissioner erroneously rejected the medical certificate. It is, therefore, clear from the facts of the case that the Commissioner failed to record a finding on a vital point and, therefore, the matter deserves to be sent back to the Commissioner.

The petition is, therefore, allowed. The Commissioner''s order dated August 12, 1986 (annexure "4" to the writ petition), is quashed and the case is sent back to the Commissioner with a direction that he will record a finding on the vital ground whether or not the Appellate Assistant Commissioner erroneously rejected the medical certificate and thereafter re-decide the case according to law. In the circumstances of the case, there will be no order as to costs.