Madras High Court
M/S.Gemini Film Circuit vs Commissioner Of Income Tax(Appeals)-7 on 29 July, 2019
Author: M.Sundar
Bench: M.Sundar
W.P.Nos.22276 &22278 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :29.07.2019
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR
W.P.Nos.22276 & 22278 of 2019
and
W.M.P.Nos.21569, 21570, 21571 & 21573 of 2019
M/s.Gemini Film Circuit
Plot No.124, Road No.11,
Jubilee Hills,
Hyderabad – 500 03.
Rep.by its Partner A.Sai Siva Jyothi ..Petitioner in both W.Ps
vs
1.Commissioner of Income Tax(Appeals)-7
Room No.218, Main Building, 2nd Floor,
121, Mahatma Gandhi Road,
Chennai – 600 034.
2.The Income Tax Officer,
Non-Corporate Ward 20(5)
Chennai. ..Respondents in both W.Ps
Prayer in W.P.No.22276 of 2019: Writ Petition filed under Article
226 of the Constitution of India praying to issue a Writ of Certiorarified
Mandamus, calling for the records of the First Respondent contained in
its order, dated 18.03.2019, bearing ITA No.225(T)/CIT(A)-7/2015-16
issued by the 1st Respondent under section 250(6) of the Income Tax
Act, 1961, for PAN:AAFFG4152N, for assessment year 2009-10, and to
quash the same as arbitrary, illegal and unjust and to consequently
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W.P.Nos.22276 &22278 of 2019
direct the 1st Respondent to decide de novo the appeal dated
22.04.2015 which was taken on file on 24.4.15 instituted by the
Petitioner for the assessment year 2009-10, under Section 246 of the
Income Tax Act, 1961, after according the Petitioner sufficient
opportunity to be heard in person, and pass such further or other
orders as this Hon'ble Court may deem fit in the interest of justice.
Prayer in W.P.No.22278 of 2019: Writ Petition filed under Article
226 of the Constitution of India praying to issue a Writ of Certiorarified
Mandamus, calling for the records of the 1st Respondent contained in
its order, dated 18.03.2019, bearing ITA No.414(T)/CIT(A)-7/2016-17
issued by the First Respondent under section 250(6) of the Income Tax
Act, 1961, for PAN:AAFFG4152N, for assessment year 2008-09, and to
quash the same as arbitrary, illegal and unjust and to consequently
direct the 1st Respondent to decide de novo the appeal dated
18.04.2016 which was taken on file on 21.4.16 instituted by the
Petitioner for the assessment year 2008-09, under Section 246 of the
Income Tax Act, 1961, after according the Petitioner sufficient
opportunity to be heard in person, and pass such further or other
orders as this Hon'ble Court may deem fit in the interest of justice.
For Petitioner : Mr.Suhrith Parthasarathy
(in both W.Ps)
For Respondents : Mr.J.Narayanaswamy
Senior Standing counsel
(Income Tax)
(in both W.Ps)
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W.P.Nos.22276 &22278 of 2019
COMMON ORDER
Mr.Suhrith Parthasarathy, learned counsel on record for the writ petitioner in both the writ petitions and Mr.J.Narayanaswamy, learned Senior Standing counsel (Income Tax) on behalf of both the respondents in both the writ petitions are before this Court.
2. With consent of learned counsel on both sides, main writ petitions are taken up, heard out and are being disposed of.
3. Writ petitioner is a Partnership Firm engaged in the business of production and distribution of Motion Pictures. Writ petitioner filed his return for Assessment Years 2008-2009 and 2009-2010 [hereinafter 'said AYs' for brevity]. Assessments were made and demand notices were issued. To be noted, assessments were made under Section 143(3) of 'Income Tax Act, 1961'[hereinafter 'IT Act' for brevity].
4. Considering the narrow scope on which the instant writ petitions now turn, it may not be necessary to advert to the details of the returns and assessments. Suffice to say that the writ petitioner complaining that it is aggrieved by / not satisfied with the assessment 3/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 orders, filed statutory appeals to the first respondent in the writ petitions and these statutory appeals are under Section 250 of IT Act. To be noted, two separate statutory appeals were filed for the two assessment years, which constitute said AYs. The statutory appeals were disposed of by the First Appellate Authority namely the first respondent in instant writ petitions, by way of two separate orders bearing references 'ITA No.225(T)/CIT(A)-7/2015-16' and 'ITA No.414(T)/CIT(A)-7/2016-17', both dated 18.03.2019 [hereinafter 'impugned orders' in plural and 'impugned order' in singular]. Instant writ petitions have been filed, assailing the impugned orders.
5. Notwithstanding very many grounds raised in the affidavits filed in support of the writ petitions and notwithstanding grounds urged / contentions campaigned in the affidavits filed in support of instant writ petitions, learned counsel for writ petitioner abridged and restricted his submissions in the hearing to one aspect of the matter and that ground is, writ petitioner not being given an opportunity of personal hearing before the Appellate Authority.
6. Adverting to Sub Sections 1 and 2 of Section 250 of IT Act, 4/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 learned counsel for writ petitioner contended that it is statutorily imperative for the First Appellate authority to give a personal hearing.
7. This is a case where, it is mentioned in the impugned orders that notice of hearing was sent to the writ petitioner, but the same was returned unserved. This according to the impugned orders was on 19.02.2019. Though it is mentioned in impugned orders that notices remained unserved, it has also been recorded in the impugned orders that an adjournment was sought on 08.03.2019. Learned Revenue counsel, pointing out this aspect of the matter, submitted that it cannot be gainsaid that the writ petitioner has not been given an opportunity as the writ petitioner has sought adjournment. However, the writ petitioner contends that the notices said to have been sent regarding personal hearing were never served on the writ petitioner and therefore, contentions to the contrary are untenable.
8. In this backdrop, without entering upon the factual dispute and embarking upon the exercise of resolving the factual dispute regarding service of notice regarding personal hearing, this Court is of the considered view that it would serve the ends of justice and would 5/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 serve the purpose of the writ petitioner assessee as well as protect the interests of revenue, if one opportunity of personal hearing is granted to the writ petitioner. This course is being adopted as there is no disputation that it is statutorily imperative to give a personal hearing, while disposing of an appeal under Section 250 of IT Act.
9. However, in the light of the narrative thus far, this Court is of the considered view that it would be appropriate to put the writ petitioner on terms or in other words, it would be appropriate to direct the writ petitioner to pay costs as a condition precedent for the personal hearing. To be noted, this was the alternate submission of Revenue counsel made without prejudice to the main contention.
10. In the light of the narrative thus far, the following order is passed:
a) Impugned orders of first respondent bearing references ITA No.225(T)/CIT(A)-7/2015-16 and ITA No.414(T)/CIT(A)-7/2016-17, both dated 18.03.2019 are set aside.
b) To be noted, impugned orders are set aside without expressing any view or opinion on the merits of the matter 6/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 and this course is adopted only for the purpose of facilitating the statutorily imperative personal hearing to the writ petitioner assessee.
c) Writ petitioner assessee shall pay costs of Rs.10,000/- [Rupees Ten thousands only] in each of the writ petitions [Rupees Twenty Thousands in all, this being a common order] to Blue Cross of India, No.72, Velacherry Road, Guindy, Chennai – 32 within a fortnight from today i.e., on or before 12.08.2019.
d) The personal hearing is fixed by consent between the parties on 22.08.2019 (Thursday) in the office of the 1st respondent at 12.00 Noon. However, it is open to the 1 st respondent to adjourn the hearing (if it becomes necessary) interalia by exercising his powers under Sub Section 3 of Section 250 of IT Act.
e) If the writ petitioner does not pay the costs imposed, that would be the end of the matter and the impugned orders will stand revived.
f) If the writ petitioner does not avail the personal hearing, either on 22.08.2019 or any other adjourned day, even if it is after payment of costs, the impugned orders will stand revived.7/10
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g) If the writ petitioner pays costs in the aforesaid manner and also, avails the personal hearing before 1st respondent, 1st respondent shall hear the appeal afresh again and pass orders afresh after considering all the objections that are raised by the writ petitioner assessee, in the appeals moreso in the personal hearing. The orders shall be passed as expeditiously as possible and orders so passed shall be duly communicated to the writ petitioner assessee under due acknowledgment.
11. Instant writ petitions are disposed of with the aforesaid directions. Consequently, connected miscellaneous petitions are closed.
12. Though the writ petitions are disposed of, Registry is directed to list these matters under the caption 'FOR REPORTING COMPLIANCE' on 13.08.2019.
29.07.2019 kak Index:Yes/No Speaking order/Non-Speaking order 8/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 To
1.Commissioner of Income Tax(Appeals)-7 Room No.218, Main Building, 2nd Floor, 121, Mahatma Gandhi Road, Chennai – 600 034.
2.The Income Tax Officer, Non-Corporate Ward 20(5) Chennai.
9/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 M.SUNDAR, J.
kak W.P.Nos.22276 & 22278 of 2019 and W.M.P.Nos.21569, 21570, 21571 & 21573 of 2019 29.07.2019 10/10 http://www.judis.nic.in