Manjula W/O. Anilkumar Bhurat vs Income Tax Officer

The grievance of the petitioner an Income Assessee is essentially against non-consideration of his application filed under Section 220(3) of the Income Tax Act, 1961 wherein he has sought for some relief qua the Assessment Order in question. He has also sought for a writ of certiorari for quashing the impugned order dated 13.02.2019 at Annexure-'D' whereby virtually his application is rejected on merits and he has been advised to pay the demand as per the notice under Section 156 of the Act. This apart he has also made an innocuous prayer for a direction to the Revenue to furnish the entire order sheet relating to the Assessment Proceedings in question, so that he can decide whether to file the appeal or not and if he decides to file one, what should be the grounds for urgment.

After service of notice, the respondent has entered appearance through his panel counsel Sri.Y.V.Raviraj who opposes the writ petition.

Learned counsel for the petitioner taking the Court through the Provisions of Section 220(3) of the Act, submits that a right is created by the Parliament in its wisdom in favour of the Assesses to seek certain ease qua the Assessment Orders at the hands of the Assessing Officer; accordingly an application was filed by the petitioner wherein he had sought for the stay of the Assessment Order specifically seeking a personal audience; instead of granting the relief to the petitioner as sought for in the said application and for a bare minimum hearing, the Respondent-Official has passed the impugned order on 13.02.2019 at Annexure-'D' rejecting the said application that too without affording an opportunity of hearing despite demand, there being absolutely no justification whatsoever; further the Petitioner has been advised to pay the entire amount comprised in the demand notice.

Learned counsel for the Petitioner grieves that, till date he has not been given the entire order sheet copy relating to the Assessment Proceedings in question and this has disabled him from pursuing any legal remedy against the subject Assessment Order and therefore, the Respondent should be interdicted for enforcing the same. He brings to the notice of the Court that after the filing of the writ petition 20% of the amount due under the Assessment Order has been extracted from the attached Bank Account of the Assessee and this act is nothing but a travesty of justice.

After service of notice, the Revenue has entered appearance through its learned Panel Counsel who opposes the writ petition. I have heard the learned counsel for the Petitioner and the learned Panel Counsel for the Revenue. I have perused the petition papers and the decision cited at the Bar.

The sub-Section 3 of Section 220 of the Act reads as under:

"(3) Without prejudice to the provisions contained in sub-section (2), on an application made by the assessee before the expiry of the due date under sub-section (1), the (Assessing Official) may extend the time for payment or allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case."

This provision is as clear as a crystal and therefore does not admit any interpretation. The language of the provision is simple and perfect. This provision vests discretion in the Assessing Official to grant some relief to the Assessee who falls within its parameters. This discretion is to be exercised according to the rules of reason and justice. It is not a Mughal discretion. When a Citizen makes an application and seeks personal audience, the law requires due consideration thereof after affording an opportunity of hearing, even when the provision in so many words does not speak of granting of such opportunity, since the principles of Natural Justice being part of Article 14 are inbuilt in every public power subject to all just exceptions. Even God is said to have given an opportunity of hearing to Adam and Eve before punishing them for eating the forbidden fruit. That being so, denial of personnel hearing is faultsome, to say the least. The contention to the contrary is very difficult to countenance.

The High Court of Panjab and Hariyana in the case of Kuku rice Mills and Others Vs. Assessing Authority-cum-Income-Tax Authority and Another reported in ITR (Vol. 196 1992) at paragraph 4 has observed as under:

"4. The contention of counsel for the petitioner is that these impugned orders were passed without affording an opportunity of hearing to the petitioners and, secondly, these are not supported by reasons as these are not speaking orders. As far as the first point is concerned, there is force in the contention of counsel for the petitioners. No doubt, if the relief is to be granted to the assessee, the authorities under the Income-tax Act may accept the return filed or pass an appropriate order granting the relief, but when such relief asked for is to be denied, the principle of natural justice would require an opportunity of hearing to be given to them. In the present case, without hearing the petitioners, the impugned orders were passed mentioning that it was difficult for the Income-tax Officer to allow stay for the payment of demand raised, as the demand was being raised under Section 154 of the Act after the decision of the appeal by the Commissioner of Income-tax (Appeals)."

The request of the Petitioner for the furnishing of entire order sheet relating to the Assessment Proceedings in question ought to have been favorably considered by the Respondent herein inasmuch as ours is an Open Governance, i.e. moving in the era of transparency. Petitioner was seeking the copies of the public records relating to his own affairs and not of others. No provision of law is quoted to deny such a relief. The counsel for the Petitioner is more than justified that, the said record is necessary to the Assessee to decide as to whether the Assessment Order is legally challengeable with a fair degree of success and therefore, withholding such records virtually amounts to scuttling the right of the Assessee to seek legal redressal against the Assessment Orders.

The contention of the learned Panel Counsel for the Revenue that recovering 20% of the amount due under the Assessment Order from the attached Bank Account of the Assessee being in terms of the CBDT Circulars cannot be faultered has force.

The contention that, it is open to the Assessee to show that the said Circulars are not binding axioms needs to be considered by the Respondent-Assessing Official in whom the discretion is vested under Section 220 (3) of the Act. This Court ordinarily will not undertake the said exercise, since power is vested in a persona designata.

In the above circumstances, these writ petitions succeed in part; a Writ of Certiorari issues quashing the impugned order dated 13.02.2019 issued by the Respondent at Annexure-D ; matter is remitted for consideration afresh after affording an opportunity of hearing to the Petitioner or his agent, in accordance with law; no coercive steps shall be taken against the Petitioner for enforcement of the Demand Notice dated 28.12.2018 till after a copy of the entire Assessment Proceedings is furnished to the Petitioner and two weeks thereafter, so that Petitioner will have a fair and reasonable opportunity to decide on the challangability of the Assessment in question.