City Express Super Market and Others vs Commissioner of Income Tax and Others

Sengupta, J.—The facts of the case are very simple in this matter. The assessee was assessed for the assessment year 1992-93 ex parte on the ground of failure of the assessee to appear in spite of successive notices. So, I do not find any procedural impropriety for taking up this matter ex parte.

The Assessing Officer had passed an assessment order. An appeal was sought to be preferred and indeed, it was preferred but ultimately it was withdrawn because a revisional application was taken out by the assessee. The order of the revisional authority is precisely under challenge and I think it fit to examine the order of the revisional authority which is sought to be impugned here. The whole question is whether the revisional authority has exercised its jurisdiction properly within the four corners of Section 264 of the Income Tax Act, 1961, or not.

I have examined the impugned order of the revisional authority. It appears to me that the revisional authority after having gone through the records was satisfied that the order of the assessing authority was to be upheld, that is, the petitioner defaulted in appearance in spite of notices ; in other words, the petitioner has been termed as a habitual defaulter. It does not appear from the impugned order that he apart from defaulting in appearance pursuant to notices has examined the legality and validity of the order on the materials placed before the Assessing Officer as well as before him.

The learned lawyer appearing for the petitioners contends that the petitioner could not appear before the authority concerned in view of the illness as well as the delinquent act and activities on the part of the employees. So, the petitioner was prevented from appearing and thereby, it was denied an opportunity of being heard.

As far as the legality and validity of the order of the Assessing Officer is concerned, I am not here to examine either to accept or reject the contention of the writ petitioners. It is for the revisional authority or for that matter, the appellate authority to do so, who take care of all these things under the law. However, there is substance in his argument that apart from questioning other things, the revisional authority should have looked into on its own motion whether the order passed by the assessing authority was otherwise sustainable under the law or not. He contends that this exercise has not been undertaken at all. So, when the quasi judicial authority did not advert to the correct question or controversy, then it cannot be said that he has heard the matter in accordance with law.

The proper exercise of jurisdiction and for that matter, to decide the real question is part of the compliance of the natural justice which, however, is not complied with here.

Mr. Pal appearing for the respondents submits that the order does not call for any interference since the Commissioner has examined the records and having found the petitioner a defaulting assessee and not responding to several notices of the Assessing Officer. So this order had justifiably been upheld by the revisional authority.

I am unable to accept the contention of Mr. Pal that on the aforesaid ground alone the order of the Assessing Officer should be upheld. I am of the view that apart from the non-appearance or default on the part of the assessee, it was and still is the duty of the revisional authority to exercise its power u/s 264 of the said Act to examine the legality and validity of the impugned order particularly when an assessee comes with grievance of violation of the principles of natural justice. Of course, on the basis of the materials placed before him and/or made available before the Assessing Officer, he should have examined whether the order of the Assessing Officer passed on a best judgment was otherwise sustainable in law or not. The revisional authority should have at least endeavoured to do so. I am constrained to record that the revisional authority, however, did not make any attempt to do so and thus he failed to exercise his jurisdiction as such it calls for my interference under writ jurisdiction.

Under such circumstances, I set aside the impugned order of the revisional authority and I direct the revisional authority to re-examine it within the four corners of Section 264 of the said Act except on the ground of non-appearance of the petitioner before the assessing authority. He should examine the validity and legality of the impugned order of the Assessing Officer on the given materials placed before him. This should be completed within a period of eight weeks from the date of communication of this order upon notice to the writ petitioner/assessee and/or his authorised representative.

I make it clear that in spite of service of notice, if the assessee con corned and/or his authorised representative does not appear before the revisional authority, the authority concerned should proceed with the matter in its absence in accordance with law.

The writ petition is disposed of accordingly.

There will be no order as to costs.