Safa Plywoods Private Limited Vs CIT (Kerala High Court)
Summary: The Kerala High Court quashed the First Appellate Authority’s order rejecting Safa Plywoods Private Limited’s appeal concerning AY 2017–18 because notices had not also been sent to the email address specifically furnished for receiving notices in Column No.17 of Form 35. The company challenged both the assessment order and the appellate order, contending that it had been denied an opportunity of hearing and that the appellate authority had failed to address its grounds in accordance with section 250(6). The Revenue maintained that the appeal contained three grounds, only one of which raised a debatable issue, and that no supporting documents had been submitted. It also argued that notices sent to the company’s registered email address constituted sufficient service under section 282 read with Rule 127.
The Court rejected the challenge based on section 250(6). It accepted that, without documents substantiating the only debatable ground, the appellate authority could not enter a finding on that issue. Consequently, it found no legal infirmity on the ground of non-compliance with that provision. However, the Court accepted the company’s objection concerning the opportunity of hearing. Although service at the prescribed addresses could satisfy section 282 and Rule 127 of the Income Tax Rules, Form 35 specifically required the appellant to identify the address to which notices should be sent. The company had furnished [email protected], but no notice had been sent there. The Court held that the appellate authority was bound to send notice to that address as well, since the appellant would reasonably expect communications at the address expressly designated for that purpose.
The company additionally stated that an email address in the appeal memorandum belonged to its former chartered accountant, who had been replaced following differences of opinion and had failed to intimate the authorities about the change in email ID. The Court noted that this explanation had not been substantiated. Nevertheless, the failure to send notice to the address specifically provided in the appeal memorandum warranted interference on natural justice grounds. It therefore quashed Ext.P5 and directed the First Appellate Authority to reconsider the appeal in accordance with law after giving the petitioner an opportunity of hearing. The operative relief required fresh appellate consideration; it did not decide the underlying assessment dispute on merits.
FULL TEXT OF THE KERALA HIGH COURT JUDGMENT/ORDER
The petitioner is a Private Limited Company and is an assessee under the provisions of the Income Tax Act. The challenge raised by the petitioner is against Ext.P1 order of assessment and Ext.P5 appellate order passed by the First Appellate Authority rejecting the appeal submitted by the petitioner against Ext.P1. Relevant assessment relates to the year 2017-2018. The challenge raised against Ext.P5 is mainly on the ground that, the said order was passed without fulfilling the principles of natural justice. Apart from the above, it is also contended that, Ext.P5 order was passed without referring to the contentions raised by the petitioner in appeal and on the sole ground that the petitioner failed to appear when the matter was taken up. It was in these circumstances, this writ petition is submitted seeking the following reliefs:
“i. Issue a Writ of Certiorari or any other appropriate Writ, Order or Direction to quash Exhibit-P5;
ii. Issue a Writ of Mandamus or any other Writ, Order or Direction commanding and compelling the 1st respondent to rehear Exhibit-P4 appeal afresh, after extending reasonable opportunity to the petitioner; and
iii. Such other Writ, Order or Direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”
2. I have heard Sri. George Poonthottam, learned Senior Counsel appearing for the petitioner and Sri.Cyriac Tom, learned standing counsel for the respondents.
3. Learned Senior Counsel specifically contended that, Ext.P5 order cannot be sustained in view of the fact that, the petitioner was not provided with an opportunity for being heard. It was also contended that the order passed by the 1 st appellate authority was not in tune with the statutory requirements contemplated under Sub-Section (6) of Section 250 of the Income Tax Act, which provides for framing the points of determination and to enter a finding on such points with supporting reasons.
4. On the other hand, the learned standing counsel would point out that, as regards the requirement of Sub Section (6) of Section 250, the impugned order clearly satisfies the said requirement. This submission is made by the learned Standing Counsel mainly on the ground that, the appeal contains only three grounds, of which, only one raises a debatable contention. However, along with the appeal, no documents to substantiate the said ground were submitted and therefore, it was not possible for the appellate authority to enter into any finding with respect to the grounds raised in the appeal. It is further pointed out by the learned standing counsel that, this aspect is clearly highlighted as one of the reasons, while rejecting the appeal as evidenced by Ext.P5. Therefore, it is pointed out that, no interference is warranted.
5. As regards the contention of the petitioner that no proper notice was served, it is the case of the learned standing counsel that, the notice was sent through Email in the registered Email ID of the petitioner, which amounts to sufficient compliance of Section 282 of the Income Tax Act read with Rule 127 of the Income Tax Rules.
6. I have perused the records and considered the contentions of both sides. As regards the contention of the petitioner that, the order does not satisfy the requirement of Sub Section (6) of Section 250, as rightly contended by the learned standing counsel for the respondents, the petitioner failed to provide any documents to substantiate the only ground containing a debatable issue. In the absence of any such documents, it was not possible for the above authority to enter into a finding with respect to the same. Therefore, I do not find any legal infirmity in the order passed, on the ground of non-compliance of Section 250(6) of the Income Tax Act.
7. However, when it comes to the question of passing an order without providing an opportunity of being heard to the petitioner, I find merits in the submission made by the learned Senior Counsel. Of course, it is true that, as contended by the learned standing counsel for the respondents, the petitioner was issued with notice and orders in the registered Email ID provided by the petitioner. However, Ext.P4, which is the memorandum of appeal, would indicate that, it contains a specific column as serial No.17, where, the address to which notice may be sent to the appellant was to be provided by the appellant. Thus a statutory format is prescribed and in response to the same, the petitioner had furnished the address of [email protected]. Admittedly, no notice has been sent in the said address. Of course, it is true that, going by Section 282 of the Income Tax Act and Rule 127 of the Income Tax Rules, service of notice at any of the addresses referred to in those provisions would constitute sufficient compliance with the requirement of service. Evidently the same does not include the reference of the address mentioned in Column No.17 of the form of appeal memo. However, it is a fact that, Ext.P4 appeal is submitted in a specific form, namely Form-35, wherein, specific instructions are given to the appellant to provide the address to which notices are to be sent. When such a column is specifically provided and when the appellant is furnishing a specific address in the said column, it is the bounden duty of the Appellate Authority to ensure that, the notice is sent in the said address as well. This is particularly because, since the petitioner had specifically furnished the address in the said column, in all probabilities, appellant would be expecting a notice in the said address. Therefore , non issuance of the notice/orders in the said email address is a crucial fact, which cannot be ignored.
8. Apart from the above, the petitioner has a specific case that, one of the Emails provided in the appeal memorandum was that of the chartered accountant of the petitioner and later, due to some difference of opinion, the chartered accountant was changed. However, the chartered accountant failed to intimate the authorities as to change in the email ID. Of course, it is true that, the same could not be substantiated by the petitioner. Even then, it is a fact that the appellate authority did not send the notice to the address provided by the petitioner in the appeal memorandum for the specific purpose of sending the notice. Therefore, Ext.P4 order cannot be treated as an order passed in compliance of the principles of natural justice. Therefore, an interference is required.
Accordingly, this writ petition is disposed of quashing Ext.P5, with a direction to the First Appellate Authority to reconsider Ext.P4 appeal and to pass appropriate orders in accordance with law, after giving the petitioner an opportunity for being heard.
