2017 (12) TMI 582 - HC - Income Tax

Denial of opportunity of hearing before Ext.P7 order - no response to the notice - stay of recovery of the tax due from the appellant subject to his remitting 50% thereof - Held that - From a reading of Ext.P7, we are not persuaded to accept the contentions because Ext.P7 itself shows that notice dated 16.05.2017 fixing the hearing on 12.06.2017 was issued to the appellant. It is also seen that finding that there was no response to the notice, another attempt was made to contact the appellant over telephone on 03.07.2017 and that when all these attempts fail, the appellate authority proceeded to pass Ext.P7 order. Prima facie, therefore, this order shows that this is not a case where opportunity was denied to the appellant, but it is a case where opportunity extended was not availed of by the appellant. In such a situation, we do not find any illegality in the judgment for interference. Appeal fails and is dismissed accordingly.

Summary

Issues:
Challenge to order granting stay of tax recovery, denial of opportunity of hearing before the order was passed.

Analysis:

1. Challenge to order granting stay of tax recovery:
The appellant challenged an order (Ext.P7) granting stay of recovery of tax subject to remitting 50% in six monthly instalments. The learned single Judge modified the condition to remit 30%, which was challenged in the present appeal. The appellant contended denial of opportunity of hearing before the order was passed. However, the court noted that Ext.P7 indicated that a notice was issued to the appellant fixing a hearing date, but there was no response. The appellate authority even attempted to contact the appellant via telephone. As the appellant did not avail the opportunity provided, the court found no illegality in the judgment for interference. The appeal was dismissed on this ground.

2. Denial of opportunity of hearing:
The appellant raised the plea of denial of opportunity of hearing before the order (Ext.P7) was passed. The court examined the facts and found that a notice was indeed sent to the appellant, setting a hearing date. Despite no response from the appellant, further attempts were made to contact them. The court concluded that the appellant had the opportunity to be heard but failed to avail it. Therefore, the court did not find any illegality in the judgment for interference. The appeal was dismissed on this ground as well.

3. Payment of tax amount:
Despite dismissing the appeal, the court considered the financial constraints faced by the appellant and directed them to pay the amount as ordered by the learned single Judge. The appellant was instructed to make the first instalment payment on or before a specified date, with subsequent instalments due on the 23rd of every succeeding month. This direction was given in view of the pendency of the appeal and the appellant's financial situation.

Overall, the court upheld the judgment modifying the condition for tax recovery, dismissed the appeal challenging the order, and directed the appellant to make payments as per the single Judge's order considering the financial constraints.