Bombay High Court
Mateen Pyarali Dholakia vs Union Of India And Anr on 17 September, 2021
Author: M. S. Karnik
Bench: K.R. Sriram, Makarand Subhash Karnik
450. wp 1286-21.doc
Diksha Rane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1286 OF 2021
Mateen Pyarali Dholakia ..Petitioner
vs.
Union of India & Ors. ..Respondents
------------
Mr. Hiro Rai a/w. Mr. Dharan Gandhi i/b. Mr. Vidit D. Kumat
for petitioner.
Mr. Suresh Kumar for respondents.
------------
C0RAM : K. R. SHRIRAM &
M. S. KARNIK, JJ.
DATE : SEPTEMBER 17, 2021 P.C. :
1. Rule.
Rule made returnable forthwith and heard.
2. Petitioner is impugning an assessment order dated 12 th April, 2021 on the ground that it is passed in breach of principles of natural justice. Petitioner states that an assessment order has been passed even before the time granted for fling a reply expired and without considering the reply which was already fled.
3. Petitioner received a notice dated 8 th April, 2021 for Assessment Year 2018-19 calling upon petitioner to show cause as to why assessment should not be completed as per 1/5
450. wp 1286-21.doc the draft assessment order annexed thereto. As could be seen from page 2 of the said notice, the notice has been digitally signed on 8th April, 2021 at 22:50:08 IST. Paragraph 3 of the notice reads as under :
"3. Kindly submit your response through your registered e-fling account at www.incometaxindiaefling.gov.in by 23:59 hours of 12/04/2021."
4. Petitioner fled the reply on 12 th April, 2021 as could be seen from the e-Proceedings Response Acknowledgment annexed to the Petition at Exhibit 'H'. Petitioner has averred in the Petition that it was uploaded at 8:20 a.m. Strangely even before the time to fle reply expired at 23:59 on 12 th April, 2021, the impugned assessment order came to be passed on 12th April, 2021 and as it appears from the internal page 4 of the assessment order was digitally signed at 14:53:24 IST on 12th April, 2021. There is no reference in this order to the reply fled by petitioner. In the afdavit-in- reply fled by one Syama Saji, Assistant Commissioner of Income Tax and afrmed on 1st September, 2021 (we have to note that afdavits are not available on record but a copy was tendered by Shri Suresh Kumar), it is averred in paragraph 4.6 as under :
2/5
450. wp 1286-21.doc "4.6.With reference to Para No.11 of the Writ Petition, I say that no such reply of the assessee dated 12.04.2021 was received before completion of assessment proceedings and passing of fnal assessment order which was passed by considering the materials available on record. Final Show Cause Notice was issued to the assessee on 08.04.2021 and requested to submit the details on or before 12.04.2021 before 10.30 AM. No reply as said above was found on the system within the given time on or before 10:30 AM of 12.04.2021. This ofce passed the fnal assessment order after allotted time (i.e. at 3:1.
PM. Hereto annexed and marked as Exhibit - R-3 is the copy of Screen shot of delivery report after checking the entire possible path for the submission of the assesee."
5. In paragraph 4.5 also it is stated that the assessee had to fle the reply before 10.30 AM on 12 th April, 2021, whereas the show cause notice itself says that the reply should be given by 23:59 hours on 12th April, 2021. As noted above the reply has already been fled on 12 th April, 2021 which has not been considered in the assessment order. The afant has stated that the fnal assessment order was passed at 3:1. PM, whereas the assessment order indicates that it was digitally signed at 2:53 PM. Therefore, we are constrained to observe that the afdavit does not refect the true facts and has been prepared in a very lackadaisical manner without confrming veracity of the statement being made on oath. After lot of deliberation, we have decided and we hereby call upon the afant Syama Saji to show cause 3/5
450. wp 1286-21.doc as to why perjury proceedings should not be initiated against the said Syama Saji for making incorrect statements on oath particularly without verifying the documents of the Department annexed to the Petition.
6. The impugned assessment order dated 12 th April, 2021 has to be quashed and set aside, which we hereby do. The consequential notice of demand and notice of penalty also require to be set aside and the same are hereby set aside. .. The assessment order has been passed even before time to fle reply had expired and without considering the records that reply has in fact been fled. This has resulted in petitioner having to rush praying to this Court to interfere in this wrongful action on the part of respondent. If the Assessing Ofcer had checked his/her records, he/she would not have passed assessment order hastily without waiting for time granted to fle reply expired and without checking whether any reply has been fled. In our view, it is a ft case to impose cost in the sum of Rs.10,000/- and this amount shall be paid by the concerned respondent no.2 ofcer to PM Cares Fund and the compliance afdavit with the proof of payment shall be fled within two weeks from today. The account details are as under :
4/5
450. wp 1286-21.doc Name of the Account : PM CARES Account Number : 60355358964 IFSC : MAHB0001160 Branch : UPSC - New Delhi
8. Petition disposed.
(M.S.KARNIK, J.) (K.R. SHRIRAM, J.) Digitally signed by DIKSHA DIKSHA DINESH DINESH RANE Date:
RANE 2021.09.17
17:50:45
+0530
5/5