Calcutta High Court
Indian Institute Of Chemical Engineer vs Income Tax Officer (Exemption)-I on 5 July, 2013
Author: Harish Tandon
Bench: Harish Tandon
WP No. 604 of 2013
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
INDIAN INSTITUTE OF CHEMICAL ENGINEER
Versus
INCOME TAX OFFICER (EXEMPTION)-I, KOLKATA & ORS.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 5th July, 2013.
Appearance:
Mr. Ranjit Kumar Murarka, Adv.
Ms. Sutapa Roy Choudhury, Adv.
...for the petitioner
Ms. Smita Das De, Adv.
...for the respondents
The Court : Although a preliminary objection is taken at the instance of the respondent authorities that there is an efficacious alternative remedy by way of an appeal against the order impugned in this writ petition, the petitioner has been subjected to various round of litigation before this Court. The petitioner claims to be the Indian Institute of Chemical Engineers who is constituted with a dominant object to promote and advance the chemical engineering science. It is also not in dispute that the said institute was granted exemption under Clause II, sub-Section -(1) of Section 35 of the Income Tax Act, 1961 upto 31st March, 2005. An 2 application for renewal of such exemption was taken out by the petitioner assessee which was pending until 24th August, 2009 when the Central Board of Direct Taxes rejected the said application. The said order of rejection was assailed by the petitioner before this Court in a writ petition (W.P No.7193(W) of 2012) which came to be disposed of on 16th April, 2012 holding that the said order is not sustainable and was ultimately quashed and set aside. It was especially observed in the said order that the said order shall not have any impact on the pending appeal preferred by the petitioner assessee against the assessment order for the assessment year 2009-10. This Court ultimately directed the competent authority to decide the application filed by the petitioner assessee for renewal of those exemptions within the stipulated time. According to the petitioner, the said authority have not adhered to the time limit even have not taken any decision on the said application and a contempt application has been taken out which is still pending. It is further informed that the application filed by the petitioner assessee is also pending before the Commissioner of Income Tax (Appeals) - XIV. Amidst the pendency of the said appeal, the petitioner assessee approached the assessing authority under Section 154(3) of the Income Tax Act praying for rectification of the order of assessment on the plea that the order passed by the Central Board of Direct Tax dated 24th August, 2009 has been quashed and set aside by this Court. The said authority has rejected the said application and there is no 3 dispute that the said order is capable of being assailed before the appellate forum.
The sheet anchor of the argument of the petitioner assessee is that the said order has been passed without following the principle of natural justice inasmuch as in spite of the requisition being made for a personal hearing neither any notice fixing the date nor any opportunity was afforded.
The respondent authorities have opposed this application on the ground of existence of alternative efficacious remedy by way of an appeal.
There is no absolute bar in entertaining this writ petition despite existence of an alternative efficacious remedy but the Court imposes self- restraint in not entertaining the writ petition except where it is apparent that the authorities whose order is under challenge, in writ jurisdiction, have acted in gross violation of principle of natural justice. A letter annexed at page 109 of the writ petition and issued by the lawyer appearing for the petitioner assessee reveals that a request was made for affording an opportunity of hearing before taking any decision. The order impugned came to be passed on 26th March, 2013 and there is no reflection therein that any opportunity of hearing was afforded to the petitioner assessee. Although the learned advocate appearing for the petitioner assessee has addressed on the issue that even on the basis of a subsequent decision the rectification can be sought for under Section 154 of the said Act, this Court feels that such question has become academic 4 for the simple reason that the order passed by the respondent authority suffers from violation of the principle of natural justice. This Court, therefore, refrains from making any determination or observation on the said issue and is kept open to be decided by the authority.
The order impugned is, therefore, quashed and set aside. The respondent no.1 is directed to reconsider the said application made under Section 154 of the Income Tax Act, 1961 after affording an opportunity of hearing to the petitioner assessee or its representative and shall see that the same is disposed of within four weeks from the date of the communication of this order. Needless to mention that this order shall not have any persuasive effect on the merit.
The writ petition is disposed of.
There will be no order as to costs.
It is further recorded that the writ petition has been disposed of without calling for the affidavits, the allegations contained therein shall not be deemed to have been admitted by the respondent authorities.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(HARISH TANDON, J.) kc.