IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 2917 of 2010(L) ------------------------- PETITIONER: --------------- T.S.SUJATHA, M.L.ROAD, KOTTAYAM-686 001. BY ADV. SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE SRI.TERRY V.JAMES RESPONDENTS: --------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, KOTTAYAM. 2. ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM. ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX FOR R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON.J ------------------------------------------------- W.P.(C).NO.2917 OF 2010 ------------------------------------- Dated this the 4th day of March, 2010. J U D G M E N T The petitioner is before this court challenging Ext.P15 order passed by the first respondent, mainly contending that the same was passed, without giving an opportunity of hearing to the petitioner and hence is not liable to be enforced. 2. The respondents have filed a statement also producing two documents as Ext.R1(a) and R1(b), contending that the allegation of non receipt of the notice is wrong and unfounded and that the steps taken to serve notice to the petitioner were actually thwarted, since the members of the family of the petitioner refused to accept the same and further, the office of the authorised representative (Chartered Accountant) was lying closed as clearly stated in Ext.R1(b). It is also pointed out by Mr.Jose Joseph, the learned Standing Counsel for the respondents that the petitioner is very much having the alternate remedy and hence no interference is warranted. 3. Sri. Joseph Markose, Senior Counsel appearing for the petitioner submits that, pursuant to Ext.P3 judgment passed by this Court giving appropriate directions to the respondent concerned, the W.P.(C).NO.2917 OF 2010 2 matter was proceeded with and Ext.P5 notice was issued by the first respondent in October 2008, to which the petitioner filed Ext.P6 objections. Nothing was heard thereafter for quite long, which made the petitioner to file Ext.P7 representation dated 22.7.2009 (through the authorised representative) asking the first respondent to give effect to Ext.P3 judgment at the earliest. It was in the said circumstance, that Ext.P9 notice was issued afresh, incorporating some other points as well, which necessitated filing of further objections. 4. While so, the petitioner filed Ext.P11 application u/S.144A before the superior authority i.e the second respondent. The said application was posted for hearing by the second respondent on 28.12.2009, as informed to the party vide Ext.P13 notice. Immediately on receipt of Ext.P13 by the authorised representative of the petitioner, Ext.P14 application was filed, seeking for adjournment by '5 days' along with a medical certificate. It is the case of the petitioner that the petitioner bonafide believed that the matter was adjourned and the next date of hearing would be communicated to the authorised representative in due course. Quite shockingly, it is said, the petitioner was served with Ext.P15 assessment order W.P.(C).NO.2917 OF 2010 3 passed by the first respondent, stating that the proceedings were finalised as the petitioner had not turned up. The stand of the first respondent that notice of hearing was duly served to the petitioner/authorised representative is vehemently opposed by the petitioner, referring to the facts and circumstances. 5. With reference to the observations in paragraph 4 of Ext.15, learned Senior Counsel for the petitioner submits that it was only from Ext.P15 assessment order, that the petitioner came to know that the petition for adjournment (Ext.P4) was rejected by the second respondent on 28.12.2009 itself. However, the course pursued is very much discernible from paragraph 4 of Ext.P15 itself. It is conceded that the 'direction' of the second respondent u/S.144A of the IT Act dated 28.2.09 (Ext.R1(a)) was received by the first respondent. It is further stated that the second respondent, as per the 'said order', had directed to complete the assessment without delay, with a further direction that the assessee's claim for allowing telescoping of incomes and for considering withdrawals from the bank accounts might be examined while passing the assessment. After referring to the directions given by second respondent, it is further stated in the very same paragraph that another notice of W.P.(C).NO.2917 OF 2010 4 posting was issued to the assessee, but not accepted at the assessee's address and that the premises of the authorised representative was found locked from outside. 6. The above discussion shows that Ext.P11 application u/S 144A was scheduled to be heard on 28.12.09, that Ext.P14 application for adjournment was rejected on 28.12.09 and that the final order as borne by R1(a) was passed on that day itself which is stated as received by the first respondent on the very same day followed by a notice stated as issued by the first respondent again on 28.12.09 itself. It is with reference to the said notice, stated as issued by the first respondent on 28.12.09, it has been mentioned in Ext.P15, that the notice was not accepted by the members of the family of the petitioner and further that the office of the authorised representative was lying locked from outside. This court finds it difficult to swallow the version of the respondents, without a pinch of salt. This court holds that the notice stated as issued by the first respondent pursuant to Ext.R1(a) passed by the second respondent was not duly communicated and this being position, the matter requires to be reconsidered. 7. There is yet another reason as well. As pointed out by the W.P.(C).NO.2917 OF 2010 5 learned Senior Counsel appearing for the petitioner there is absolutely no ground to sustain the unwarranted haste shown by the respondents in finalizing the matter, denying effective opportunity of hearing to the petitioner, more so since there was no question of 'limitation' as conceded by the petitioner herself-as taken note of in the last paragraph of Ext.R1(a). 8. In the above facts and circumstances, Ext.P15 assessment order and Ext.P16 demand notice are hereby set aside and the first respondent is directed to reconsider the matter, by taking further steps from the stage when Ext.R1(a) order passed by second respondent was served on the first respondent. Fresh notice shall be issued to the petitioner and the assessment shall be finalized in accordance with law, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of, as above. P.R.RAMACHANDRA MENON,JUDGE. pm