Case Law Details
Michealle Fatima Niaz Vs CIT (Kerala High Court)
Kerala High Court held that provisions of section 250 of the Income Tax Act mandates Commissioner (A) to fix the date and place of hearing in the appeal and notice in that regard is required to be issued. Order issued in violation of procedure prescribed u/s. 250 is liable to be set aside.
Facts-
The present writ petition under Article 226 of the Constitution of India has been filed against orders passed by the CIT(A) in appeals which are instituted by one late Mr. Mohammad Niaz, husband of the petitioner.
Notably, the husband of the petitioner had died on 09.05.2018, after instituting the appeals. The impugned orders would disclose that several notices for hearing in the appeals were issued to the assessee. However, there were no response to any one of the said notices. The date was fixed on 05.06.2023 for hearing by the notice dated 30.05.2023. In response to the said notice dated 30.05.2023, petitioner, the wife of late Mohammed Niaz sent letter dated 07.06.2023 intimating that her husband had died on 09.05.2018. She also prayed for her impleadment in the appeal in place of her husband. Therefore, the appeals were posted for hearing on 12.06.2023. Thereafter a letter attaching the death certificate of Mohammed Niaz and other documents were filed in the appeal.
Show Cause Notices dated 23.06.2023 were issued to the petitioner to which the response was filed vide letter dated 16.08.2023 showing the grounds of appeal and written submission was also filed on 16.08.2023. Considering the grounds of appeal and written submissions, the impugned orders came to be passed.
Conclusion-
It is incumbent on the Commissioner (Appeals) to fix the date and place of hearing in the appeals and for that purpose, a notice ought to have been issued to the petitioner herein as per the provisions of Section 250 of the Income Tax Act. No such notice fixing the date and place of hearing was issued after the filing of the written submission by the petitioner.
Held that the impugned orders have been issued in violation of the procedure prescribed under Section 250 of the Income Tax Act for hearing and deciding the appeals.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
1. Heard Mr. Abraham K. J., Learned Counsel for the petitioner and Ms. Susie B. Varghese, learned Senior Counsel for the Income Tax Department.
2. The present writ petition under Article 226 of the Constitution of India has been filed impugning Exhibits P-34 to P-39 orders passed by the Commissioner of Income Tax (Appeals) – 3, Kochi in Exhibits P-8 to P-13 appeals which are instituted by one late Mr. Mohammed Niaz, husband of the petitioner on 22.12.2017 against Exhibits P-2 to P-7 assessment orders of the Deputy Commissioner of Income Tax, Central Circle – 1, Ernakulam for the assessment years 2010-11 to 2015-16 respectively.
3. The husband of the petitioner had died on 09.05.2018, after instituting the appeals. The impugned orders in Exhibits P-34 to P-39 would disclose that several notices for hearing in the appeals were issued to the assessee. However, there were no response to any one of the said notices. The date was fixed on 05.06.2023 for hearing by the notice dated 30.05.2023. In response to the said notice dated 30.05.2023, petitioner, the wife of late Mohammed Niaz sent letter dated 07.06.2023 intimating that her husband had died on 09.05.2018. She also prayed for her impleadment in the appeal in place of her husband. Therefore, the appeals were posted for hearing on 12.06.2023. Thereafter a letter attaching the death certificate of Mohammed Niaz and other documents were filed in the appeal. Exhibits P-15 to P-20 Show Cause Notices dated 23.06.2023 were issued to the petitioner to which the response was filed vide letter dated 16.08.2023 showing the grounds of appeal and written submission was also filed on 16.08.2023. Considering the grounds of appeal and written submissions, the impugned orders in Exhibits P-34 to P-39 came to be passed. It is very well clear that the appeals were filed physically.
4. Section 250 of the Income Tax Act, lays down the procedure in appeal. Sub-section (1) of Section 250 mandates the Joint Commissioner (Appeals) or Commissioner (Appeals), as the case may be, to fix a date and place for hearing on the appeal and notice fixing the date and time is required to be given to the appellant and the Assessing Officer. On receipt of the notice, the appellant in person or authorised representatives may appear and he/she would have the right to be heard.
5. From the facts as narrated in the impugned orders itself is evident that after 12.06.2023, no notice of hearing was issued to the petitioner though she had replied to Exhibits P-15 to P-20 Show Cause Notices as well as filed the written submissions on 16.08.2023. The Commissioner (Appeals) was aware of the fact that the petitioner’s husband had died on 09.05.2018 and the petitioner being the wife and legal heir of her late husband has filed impleadment application and also has filed the written submission and responded to the Show Cause Notices. It is therefore incumbent on the Commissioner (Appeals) to fix the date and place of hearing in the appeals and for that purpose a notice ought to have been issued to the petitioner herein as per the provisions of Section 250 of the Income Tax Act. No such notice fixing the date and place of hearing was issued after filing of the written submission by the petitioner.
6. Ms. Susie B. Varghese, learned Senior Standing Counsel for the Income Tax Department is not in a position to dispute the said facts that no notice of hearing after filing written submission by the petitioner was given to the petitioner fixing the date and place of hearing. I, thus find that the impugned orders have been issued in violation of the procedure prescribed under Section 250 of the Income Tax Act for hearing and deciding the appeals.
7. In view thereof, the present writ petition is allowed and the impugned orders in Exhibits P-34 to P-39 are set aside. The matter is remanded back to the file of the respondent to pass fresh order in accordance with the law. The petitioner is directed to appear before the respondent on 04.12.2023. No notice of hearing shall be issued to the petitioner. The petitioner may take additional grounds in support of the appeal if she so advised and the respondent shall proceed to decide the appeals afresh after hearing the petitioner.
8. It is also made clear that no other opportunities shall be given to the petitioner for filing any other documents or evidence except filing of additional grounds if she so advised.
With the above directions, the present writ petition is hereby disposed of.
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