No violation of the principle of Natural justice if the assessee fails to response to the notice issued u/s 142(1)

 

 

Where petitioner alleged that order of assessment was bad in law on ground that no notices other than one under section 142(1) was ever served upon it and, hence, there was a clear violation of principles of natural justice.

 

 

In this case, since assessment order under challenge was issued after granting sufficient opportunity to petitioner including various notices issued under sections 143 and 142 and petitioner had not replied to any of those notices, there was no violation of principles of natural justice

 

 

The copy of the order is as under:

 

 

HIGH COURT OF KERALA

Chams Branding Solutions India (P.) Ltd

v.

Deputy Commissioner of Income-tax*

BECHU KURIAN THOMAS, J.

WP(C) NO. 9917 OF 2021

OCTOBER  29, 2021

Misbah Salam, Managing Director, Anil D. Nair, R. Sreejith, Smt. Telma Raju, Sangeeth Joseph Jacob and Smt. Christina Anna Paul, Advs. for the Petitioner. Jose Joseph, SC for the Respondent.

JUDGMENT

1. Petitioner is involved in the business of Advertisement. It is an assessee under the Income-tax Act, 1961 (‘the Act’ for brevity). For the assessment year 2018-19, petitioner had filed its returns. Subsequently, it alleges to have received notice issued under section 142(1) of the Act on 24-12-2019, pursuant to which a detailed reply was filed by the petitioner. Petitioner claimed that no other notices were issued to the petitioner other than the aforementioned notice dated 24-12-2019, a copy of which is produced as Ext.P4. However, by order dated 15-3-2021, petitioner was served with a huge demand, on the basis of an assessment alleged to have been carried out under section 143(3) of the Act. Petitioner alleges that the order of assessment is bad in law since no notices other than the one under section 142(1) of the Act was ever served upon it and hence there is a clear violation of the principles of natural justice.

2. A statement has been filed on behalf of the second respondent wherein it is stated that petitioner was given several opportunities to submit the details, including the notices on 28-9-2019, 24-12-2019, 4-3-2020, 28-7-2020, 17-12-2020 and 18-2-2021. It is also stated that a further show-cause notice was issued on 12-3-2021 requesting the petitioner to submit its replies against the proposed additions on or before 14-3-2021. According to the second respondent, on all the above referred occasions, petitioner failed to submit any details. It was in such circumstances that Ext.P5 assessment order came to be issued.

3. I have heard Adv. Anil D. Nair, the learned counsel for the petitioner as well as Adv. Jose Joseph, the learned Standing counsel for the Income Tax Department.

4. Adv. Anil D. Nair vehemently contended that the order is bad in law for violation of the principles of natural justice. After referring to column 44 in Ext.P3 audit report, which was relied upon in the assessment order, it was contended that, ex faciethe assessment order is perverse since the figures in column 44 of the audit report itself revealed that those became applicable only from April, 2019 and that the figures carved out by the Assessing Officer were wholly obscure and baseless.

5. Adv. Jose Joseph, the learned Standing Counsel for the respondents’ on the other hand, pointed out that, the pleadings in the writ petition that petitioner had never received any notice other than Ext.P4, is incorrect and that it had not approached this Court revealing the true particulars. It was also submitted that, in any event, the issue raised by the petitioner requires an appreciation of disputed facts and hence, this Court ought not to interfere invoking the jurisdiction under article 226 of the Constitution of India. However, it was fairly conceded that there was a technical error in the disallowance of Rs. 2,18,27,419/-, which being an apparent error, can be rectified under section 154 of the Act.

6. On a consideration of the contentions raised by both parties, I am of the view that this is not a fit case to invoke the discretionary jurisdiction of this Court under article 226 of the Constitution of India, for more reasons than one.

7. The assessment order under challenge was issued after granting sufficient opportunity to the petitioner including various notices issued under sections 143 and 142 of the Act. Petitioner had not replied to any of those notices. Petitioner cannot thereafter, turn around and contend that it was not granted an opportunity or that there was any violation of principles of natural justice.

8. Though the last notice issued to the petitioner was on 12-3-2021, requiring it to reply on 14-3-2021, which in strict senso may not appear to be a reasonable or sufficient period to submit a reply, considering the background of the case and the repeated failure of the petitioner to respond to any of the six prior notices issued on 28-9-2019, 24-12-2019, 4-3-2020, 28-7-2020, 17-12-2020 and 18-2-2021, I am of the view that petitioner cannot claim the benefit of violation of principles of natural justice. Petitioner’s conduct reveals its adamant approach to refrain from responding to notices.

9. The notice of 12-3-2021 requesting the petitioner to submit its replies against the proposed additions on or before 14-3-2021 cannot be viewed in isolation or de horsthe past conduct of the petitioner. In fact, even for the notice of 12-3-2021, petitioner had not even cared to reply that he needs more time to respond. Violation of principles of natural justice has to be viewed with reference to facts of each case also. A person who had not responded to any notices issued in the past cannot, without anything more, turnaround and complain, that in the last notice issued he was not granted reasonable time to respond, especially when such a request for time was not even sought as a reply to the last notice.

10. In this context, the absence of pleading about the five notices issued to the petitioner and the omission to reveal in the writ petition, the receipt of notices is singularly detrimental to the petitioner. In the writ petition, petitioner asserted that it had not received any notice other than the notice dated 24-12-2019. Petitioner failed to divulge the receipt of five other notices. This conduct also must deprive the petitioner of the benefit of exercise of the discretionary jurisdiction under article 226 of the Constitution of India.

11. In any event, it is trite law that this Court would be loath to interfere where alternative and efficacious remedies are available for the assessees. Article 226 is not meant to short circuit or circumvent statutory procedures. it is only when the statutory remedies are entirely ill-suited to meet the demands of extraordinary situations that the Court should interfere under article 226, especially in matters of taxation. Such a situation is not existing in the instant case.

12. Further, in a recent decision of the Supreme Court, it was held that, though not a bar, entertaining a writ petition must be only in exceptional circumstances where there is a breach of fundamental rights or a violation of the principles of natural justice or an excess of jurisdiction or when there is a challenge to the vires of the statute. See Asstt. Commissioner of State Taxv. Commercial Steel Ltd. [2021] 130 taxmann.com 180. Since I have already held that in the facts of this case there cannot be a justifiable case of violation of natural justice, the exceptional circumstances mentioned above to invoke the remedy under article 226 is not available to the petitioner.

13. As rightly submitted by the learned Standing Counsel, though the assessment order contains a technical issue in the computation statement, that is a matter which can be rectified under section 154 of the Act and hence the same need not be considered under article 226. I find force in the submission of the learned counsel.

14. In view of the above deliberations, I find no merit to interfere in the matter, exercising the discretionary jurisdiction under article 226 of the Constitution of India. However, liberty of the petitioner to pursue its statutory remedies is reserved.

The writ petition is accordingly dismissed