Calcutta H.C : The assessee was assessed for the asst. yr. 1992-93 ex parte on the ground of failure of the assessee to appear in spite of successive notices.

High Court Of Calcutta

City Express Super Market & Ors. vs. CIT & Ors.

Section 264

Asst. year 1992-93

Sengupta, J.

Writ Petn. No. 2045 of 1998

18th December, 2000

Counsel Appeared

S. Bagchi & R.K. De, for the Petitioners : Soumitra Pal & Anil Kumar Gupta, for the Respondents

JUDGMENT

SENGUPTA, J. :

The fact of the case is very simple in this matter. The assessee was assessed for the asst. yr. 1992-93 ex parte on the ground of failure of the assessee to appear in spite of successive notices. So, I do not find any procedural impropriety for taking up this matter ex parte. The AO had passed an assessment order. An appeal was sought to be preferred and indeed, it was preferred but ultimately it was withdrawn because a revisional application was taken out by the assessee. The order of the revisional authority is precisely under challenge and I think it fit to examine the order of the revisional authority which is sought to be impugned here. The whole question is whether the revisional authority has exercised its jurisdiction properly within the four corners of s. 264 of the IT Act or not. 2. I have examined the impugned order of the revisional authority. It appears to me that the revisional authority after having gone through the records was satisfied that the order of the assessing authority was to be upheld, that is, the petitioner defaulted in appearance in spite of notices; in other words, the petitioner has been termed as a habitual defaulter. It does not appear from the impugned order that he apart from defaulting in appearance pursuant to notices has examined the legality and validity of the order on the materials placed before the AO as well as before him.

3. The learned lawyer appearing for the petitioners contends that the petitioner could not appear before theauthority concerned in view of the illness as well as the delinquent act and activities on the part of the employees. So, the petitioner was prevented from appearing and thereby, it was denied an opportunity of being heard.

4. As far as the legality and validity of the order of the AO is concerned, I am not here to examine either to accept or reject the contention of the writ petitioners. It is for the revisional authority or for that matter, the appellate authority to do so, who take care of all these things under the law. However, there is substance in his argument that apart from questioning other things, the revisional authority should have looked into on its own motion whether the order passed by the assessing authority was otherwise sustainable under the law or not. He contends that this exercise has not been undertaken at all. So, when the quasi judicial authority did not advert to the correct question or controversy, then it cannot be said that he has heard the matter in accordance with law. The proper exercise of jurisdiction and for that matter, to decide the real question is part of the compliance of the natural justice which, however, is not complied with here.

5. Mr. Pal appearing for the respondents submits that the order does not call for any interference since the CIT has examined the records and having found the petitioner a defaulting assessee and not responding to several notices of the AO so this order had justifiedly been upheld by the revisional authority.

6. I am unable to accept the contention of Mr. Pal that on the aforesaid ground alone the order of the AO should be upheld. I am of the view that apart from non-appearance or default on the part of the assessee, it was and still is the duty of revision authority to exercise its power under s. 264 of the said Act to examine the legality and validity of the impugned order particularly when an assessee comes with grievance of violation of principle of natural justice. Of course, on the basis of the materials placed and/or made available before the AO, he should have examined whether the order of the AO passed on a best judgment was otherwise sustainable in law or not. The revisional authority should have at least endeavoured to do so. I am constrained to record that the revisional authority, however, did not make any attempt to do so thus he failed to exercise his jurisdiction as such it calls for my interference under writ jurisdiction.

7. Under such circumstances, I set aside the impugned order of the revisional authority and I direct the revisional authority to re-examine it within the four corners of s. 264 of the said Act except on the ground of non-appearance of the petitioner before the assessing authority. He should examine the validity and legality of the impugned order of the AO on the given materials placed before him. This should be completed within a period of 8 weeks from the date of communication of this order upon notice to the writ petitioner/assessee and/or his authorised representative.

8. I make it clear that in spite of service of notice, if the assessee concerned and/or his authorised representative does not appear before the revisional authority, the authority concerned should proceed with the matter in its absence in accordance with law. The writ petition is disposed of accordingly. There will be no order as to costs.

[Citation : 248 ITR 728]

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