A person who fails to avail Opportunity Granted to him Cannot Complain about Violation of Principles of Natural Justice: Kerala HC directs to File Appeal before Income Tax Appellate Tribunal [Read Order]

The Kerala High Court observed that a person who failed to avail opportunity granted to him cannot complain about violation of principles of natural justice and directed the petitioner to file appeal before the Income Tax Appellate tribunal to submit further documents and evidence.

Mr. Aswin Gopakumar appeared for the petitioner and Mr. Jose Joseph appeared for the respondents.

C. Prasannakumaran Unnithan, the petitioner filed the petition impugning the order on appeal under Section 250 of the Income Tax Act,1961 passed by the National Faceless Appeal Centre, Delhi (‘NFAC’) which is instituted against the order by the assessing authority in respect of the assessment year 2017-18. The appeal was instituted on 09.01.2020 and remained pending. In the meantime, the Government notifies the Faceless Appeal Scheme, 2021 and this appeal was also taken up by the NFAC for decision.

The petitioner was issued notice on 20.07.2023 asking him to submit his written submissions in support of each ground of appeal along with supporting documentary evidence and documents. The petitioner was given time till 31.07.2023 for affording the written submissions and supporting documentary evidences in response to notice in the appeal. The petitioner on 31.07.2013 itself requested for time till 15.08.2023 for filing written submissions and supporting documentary evidence.

A second notice dated 10.08.2023 was issued to the petitioner giving him time till 18.08.2023 for furnishing written submissions and documentary evidences with a warning that, if no submissions/information/documents are not received within the stipulated time period, it will be presumed that the petitioner has nothing to say in this matter and the Department will proceed ahead based on the material available on record.

After second notice was issued, there was no response to the request dated 31.07.2023. On the last date as per notice for furnishing the written submissions and documentary evidence in support, assessee made a request for adjourning the hearing to 02.09.2023. The appellate authority without granting time as requested by the petitioner, passed the impugned order on merits.

It was submitted that the appeal remains pending for almost three years before the appellate authority. After three years it was taken up for hearing and the petitioner was issued first notice in which the petitioner requested for fifteen days i.e. up to 15.08.2023 for furnishing the written submissions and documentary evidences.

In MS Radha Krishan Industries Vs State of Himachal Pradesh, it was stated that the availability of statutory alternative remedy is not a complete bar for entertaining a writ petition by the High Court if there has been violation of principles of natural justice or it involves the violation of fundamental rights of the writ petitioner.

 Mr. Jose Joseph, Standing Counsel for the respondents has, however, submitted that the petitioner was granted enough opportunity to upload his written submissions and documentary evidences in support.

Justice Dinesh Kumar Singh observed that “the petitioner cannot complaint that he was not afforded opportunity to file written submissions and supporting documents, as he had time till 18.08.2023 from 20.07.2023. But he failed to furnish written submissions and documentary evidence and again he requested for further time.”

Further court viewed that “A person who fails to avail the opportunity granted to him to make submissions and produce documents in support thereof cannot complain about the violation of principles of natural justice. The question of violation of the principles of natural justice arises when, without an opportunity of hearing or time for producing the evidence, the authority proceeds and passes an order against the person.”,  

Further the Income Tax Appellate Tribunal can examine all the evidence which may not have been produced before the assessing authority or the appellate authority and would consider all the submissions which may not have been taken before the appellate authority or the assessing authority to decide the second appeal under Section 253 of the Income Tax Act.

The question regarding the Income Tax Appellate Tribunal being not efficacious forum for deciding appeals is also not called for since the provisions of Section 253 is not in challenge before this Court.

The Court disposed of the writ petition  with  a direction to the petitioner to file an appeal before the Income Tax Appellate Tribunal against the impugned order within a period of one month from today and the petitioner may take all the grounds which are available to him and produce all evidence in support thereof. The Income Tax Appellate Tribunal shall consider the documents and grounds of the petitioner while disposing of the appeal in accordance with law expeditiously.  “Petitioner may also file an application for the stay of the demand in pursuance to the assessment order and the appellate authority shall consider the same expeditiously. If the petitioner deposits 20% of the assessed tax, the stay application shall be decided within a period of one month from the date of filing of the appeal and stay application.”, the Court held.

To Read the full text of the Order CLICK HERE

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