The Kerala High Court set aside the assessment order which was passed without issuing proper notice as per section 250 of the Income Tax Act, 1961. The Court ruled that failure to issue notice fixing the date and place of hearing as per section 250 of the Income Tax Act is Invalid.
Michealle Fatima Niaz, the petitioners challenged the orders passed by the Commissioner of Income Tax (Appeals) – 3, Kochi in appeals which are instituted by one late Mr Mohammed Niaz, husband of the petitioner against assessment orders of the Deputy Commissioner of Income Tax.
The husband of the petitioner died on 09.05.2018, after instituting the appeals. The impugned orders disclose that several notices for hearing in the appeals were issued to the assessee. However, there was 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. The petitioner, the wife of the late Mohammed Niaz sent a letter dated 07.06.2023 intimating that her husband had died on 09.05.2018.
As the wife prayed for her impleadment in the appeal in place of her husband, 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 were issued to the petitioner to which the response was filed vide letter dated 16.08.2023 showing the grounds of appeal and a written submission was also filed on 16.08.2023. Considering the grounds of appeal and written submissions, the impugned orders came to be passed.
It was observed that 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 a 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.
A single bench of Justice Dinesh Kumar Singh viewed that it was 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.
The Court found that the impugned orders had been issued in violation of the procedure prescribed under Section 250 of the Income Tax Act for hearing and deciding the appeals. While allowing the writ petition the court set aside the impugned order and remanded the matter back to the file of the respondent to pass a fresh order by the law.
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