Madras High Court
Dr.B.Kalpana vs The Commissioner Of Income Tax ... on 30 April, 2024
Author: C.Saravanan
Bench: C.Saravanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.(MD) Nos.10720, 10747, 10771, 10835, 10864, 10883, 10897, 10921,
10925, 10960 and 10985 of 2024
and
W.M.P.(MD) Nos.9596, 9611, 9630, 9663, 9675, 9694, 9708, 9730, 9733, 9750
and 9785 of 2024
W.P.(MD) No.10720 of 2024:
Dr.B.Kalpana ... Petitioner
Vs.
1.The Commissioner of Income Tax (Appeals),
O/o the Commissioner of Income Tax,
Chennai 600 019.
2.The Assistant Commissioner of Income Tax,
(Central Circle I),
Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records of the first
Respondent relating to order dated 28.03.2024 bearing DIN and Order
No.ITBA/APL/S/250/2023-24/1063563772(1) and confirming the Assessment
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order of the Second Respondent dated 31.03.2022 as well as consequential
Demand Notice dated 31.03.2022 for the Assessment year 2016-17 and quash the
same with consequential direction to the First Respondent to provide opportunity
of being heard to the Petitioner - Assessee for producing records to substantiate
the claim.
For Petitioner : Mr.Haja Nazirudeen Senior Counsel for
Mr.KV Law Firm
For respondent : Mr.N.Dilip Kumar
Senior Standing Counsel
COMMON ORDER
Mr.N.Dilip Kumar, learned Senior Standing Counsel takes notice for the respondents.
2.By this common order, all the writ petitions are being disposed of.
3.In these writ petitions, the petitioner has challenged the order passed by the Appellate Commissioner under Section 250 of the Income Tax Act, 1961 and the order passed under Section 154 of the Income Tax Act, 1961, pursuant to the application filed by the petitioner for rectification of the respective assessment orders passed for the assessment years 2014-15 to 2019-20. 2/8 https://www.mhc.tn.gov.in/judis
4.The facts on record indicate that a survey was conducted at the premises of the petitioner's hospital under Section 133A of the Income Tax Act, 1961. The petitioner appears to have availed the benefit of Section 35AD of the Income Tax Act, 1961 claiming loss.
5.The survey however indicates that the petitioner may not have been entitled to the benefit of Section 35AD of the Income Tax Act, 1961. Thus, the loss that was declared by the petitioner, which was set off during the succeeding assessment year, has been disallowed by separate assessment orders, which were the subject matter of the appeals before the first respondent.
6.The case of the petitioner is that the petitioner is a busy professional and had engaged the services of an Auditor to represent the petitioner before the first respondent/the appellate Commissioner. However, the Auditor failed to appear before the Appellate Commissioner. Instead, he had only filed written submissions.
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7.It is submitted that even in the proceedings filed under Section 154 of the Income Tax Act, 1961 to rectify the order passed affirming the assessment orders, the petitioner was not represented by the Chartered Accountant/Auditor and thus, the petitioner has been denied the benefit of Section 35AD of the Income Tax Act, 1961, which has had a cascading effect on the petitioner's assessment.
8.The learned Standing Counsel for the respondents would submit that these writ petitions are devoid of merits. It is submitted that after the assessment was completed, the petitioner had filed an application under Section 154 of the Income Tax Act, 1961 and the applications were rejected.
9.It is thereafter the petitioner filed appeals under Section 246A of the Income Tax Act, 1961 before the first respondent, which were culminated in the respective orders in appeals of the first respondent, which have been impugned in these writ petitions.
10.That apart, it is submitted that the petitioner did not co-operate with the respondents either at the stage of disposal of the appeal or at the stage of 4/8 https://www.mhc.tn.gov.in/judis consideration of the rectification of the application and therefore, the orders have been passed based on the materials that were available before the Appellate Commissioner, namely the first respondent. It is therefore submitted that no fault can be attributed to the first respondent/the Appellate Commissioner.
11.It is further submitted that the petitioner has an alternate remedy by way of an appeal before the appellate Tribunal under Section 253 of the Income Tax Act, 1961. Hence, these writ petitions are liable to be dismissed.
12.I have considered the submissions made by the learned Senior Counsel for the petitioner and the learned Senior Standing Counsel for the respondents and perused all the documents filed by the petitioner in support of all the writ petitions.
13.I have also considered the respective impugned orders passed dismissing the appeals of the petitioner against the assessment orders as also the respective orders dismissing the appeals against the rectification order passed under Section 154 of the Income Tax Act, 1961.
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14.Reading of the respective orders for the respective assessment orders would indicate that no fault can be attributed to the first respondent, as the petitioner has not co-operated with the respondents by appearing in person and explaining the case. Instead, the petitioner has filed written submissions, which was considered and has culminated in the respective orders under Section 250 of the Income Tax Act, 1961.
15.Considering the fact that the petitioner may have a case to substantiate the case before the first respondent, I am inclined to set aside the impugned orders by giving one more opportunity to the petitioner to appear before the first respondent in person by filing additional written submissions, if any. The petitioner shall appear in person and also produce necessary documents for the first respondent to take a decision on merits.
16.This exercise shall be carried out by the petitioner within a period of 60 days from the date of receipt of a copy of this order. The first respondent/Appellate Commissioner shall dispose of the case on merits and in 6/8 https://www.mhc.tn.gov.in/judis accordance with law within a period of 4 months thereafter. It is needless to state that the petitioner shall also be heard before a fresh orders is passed.
17.These Writ Petitions stand allowed accordingly. No costs. All the connected Miscellaneous Petitions are closed.
Index : Yes / No 30.04.2024
Internet : Yes / No
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C.SARAVANAN, J.
mm
W.P.(MD) Nos.10720, 10747, 10771, 10835, 10864, 10883, 10897, 10921, 10925, 10960 and 10985 of 2024 30.04.2024 8/8 https://www.mhc.tn.gov.in/judis