Mallappally Service Co-Operative Bank Ltd vs Central Board Of Direct Taxes

Shoba Annamma Eapen, J

The judgment dated 09.11.2023 rendered by the learned Single Judge, dismissing WP(C) No.37204/2023, is the subject matter of challenge in this intra court appeal filed under Sec.5(i) of the Kerala High Court Act, 1958. The appellant is the writ petitioner.

The appellant is an assessee under the provisions of the Income Tax Act, 1961. The assessment was completed in respect of the assessment year 2016-17 as per Ext.P2 order dated 20.12.2018. Challenging Ext.P2 order, the appellant filed appeal before the third respondent, Commissioner of Income Tax Appeals, Kottayam.

Pursuant to the filing of the appeal, Ext.P4 hearing notice was issued to the appellant and the appellant's lawyer participated in the hearing and submitted written submissions. Thereafter, no notice was issued to the appellant and subsequently, Ext.P7 order was passed by the fifth respondent for non appearance of the petitioner on the several date of posting. The learned single judge, after elaborate consideration, dismissed the writ petition holding that the appellant did not respond to the notices issued and no written submissions were made. Aggrieved by this, the appellant has approached this court with this appeal.

We have heard Dr.K.P.Pradeep, learned counsel for the appellant as well as Sri.Christopher Abraham, learned Standing Counsel for the respondents.

On a perusal of Ext.P5, it is seen that the appellant had filed written submission before the third respondent. According to the appellant, the hearing was also conducted by the third respondent. However, Ext.P7 order is seen passed by the fifth respondent – Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC). In Ext.P7 order, the fifth respondent had stated that notice of hearing has been issued a number of times, but nobody attended/replied. It is the case of the appellant that on receipt of Ext.P4 hearing notice dated 20.11.2019, the petitioner, through his lawyer, participated in the hearing and written submissions were also sent through mail on 05.12.2019. However, the order passed by the fifth respondent does not reflect receipt of Ext.P5 written submissions sent by the appellant through e-mail.

The learned counsel for the appellant submits that the only notice received by the appellant is the notice dated 20.11.2019 and no other notices were issued by the respondent. The respondents have not produced any document to prove that the notices referred to in Ext.P7 was served on the appellant, whereas, the appellant has produced before this Court the written submissions filed before the third respondent.

On a consideration of the entire facts of the case, we are of the opinion that there was violation of principles of natural justice in not considering the written objections filed by the appellant and hence, one more opportunity has to be granted.

Accordingly, the writ appeal is disposed of, as follows;

a) Ext.P7 order is set aside.

b) The fifth respondent is directed to consider the appeal filed by the appellant afresh and pass appropriate orders in accordance with law after affording the appellant an opportunity of being heard.

c) Till the disposal of the appeal, the stay granted originally shall continue.

The  appellant  shall  produce  certified  copy  of  this judgment before the fifth respondent for compliance.