IN HIGH COURT OF JUDICATURE AT MADRAS DATED :29.07.2019 CORAM HON'BLE MR.JUSTICE M.SUNDAR W.P.Nos.22276 & 22278 of 2019 and W.M.P.Nos.21569, 21570, 21571 & 21573 of 2019 M/s.Gemini Film Circuit Plot No.124, Road No.11, Jubilee Hills, Hyderabad 500 03. Rep.by its Partner A.Sai Siva Jyothi ..Petitioner in both W.Ps vs 1.Commissioner of Income Tax(Appeals)-7 Room No.218, Main Building, 2nd Floor, 121, Mahatma Gandhi Road, Chennai 600 034. 2.The Income Tax Officer, Non-Corporate Ward 20(5) Chennai. ..Respondents in both W.Ps Prayer in W.P.No.22276 of 2019: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus, calling for records of First Respondent contained in its order, dated 18.03.2019, bearing ITA No.225(T)/CIT(A)-7/2015-16 issued by 1st Respondent under section 250(6) of Income Tax Act, 1961, for PAN:AAFFG4152N, for assessment year 2009-10, and to quash same as arbitrary, illegal and unjust and to consequently 1/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 direct 1st Respondent to decide de novo appeal dated 22.04.2015 which was taken on file on 24.4.15 instituted by Petitioner for assessment year 2009-10, under Section 246 of Income Tax Act, 1961, after according Petitioner sufficient opportunity to be heard in person, and pass such further or other orders as this Hon'ble Court may deem fit in interest of justice. Prayer in W.P.No.22278 of 2019: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus, calling for records of 1st Respondent contained in its order, dated 18.03.2019, bearing ITA No.414(T)/CIT(A)-7/2016-17 issued by First Respondent under section 250(6) of Income Tax Act, 1961, for PAN:AAFFG4152N, for assessment year 2008-09, and to quash same as arbitrary, illegal and unjust and to consequently direct 1st Respondent to decide de novo appeal dated 18.04.2016 which was taken on file on 21.4.16 instituted by Petitioner for assessment year 2008-09, under Section 246 of Income Tax Act, 1961, after according Petitioner sufficient opportunity to be heard in person, and pass such further or other orders as this Hon'ble Court may deem fit in interest of justice. For Petitioner : Mr.Suhrith Parthasarathy (in both W.Ps) For Respondents : Mr.J.Narayanaswamy Senior Standing counsel (Income Tax) (in both W.Ps) 2/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 COMMON ORDER Mr.Suhrith Parthasarathy, learned counsel on record for writ petitioner in both writ petitions and Mr.J.Narayanaswamy, learned Senior Standing counsel (Income Tax) on behalf of both respondents in both writ petitions are before this Court. 2. With consent of learned counsel on both sides, main writ petitions are taken up, heard out and are being disposed of. 3. Writ petitioner is Partnership Firm engaged in business of production and distribution of Motion Pictures. Writ petitioner filed his return for Assessment Years 2008-2009 and 2009-2010 [hereinafter 'said AYs' for brevity]. Assessments were made and demand notices were issued. To be noted, assessments were made under Section 143(3) of 'Income Tax Act, 1961'[hereinafter 'IT Act' for brevity]. 4. Considering narrow scope on which instant writ petitions now turn, it may not be necessary to advert to details of returns and assessments. Suffice to say that writ petitioner complaining that it is aggrieved by / not satisfied with assessment 3/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 orders, filed statutory appeals to first respondent in writ petitions and these statutory appeals are under Section 250 of IT Act. To be noted, two separate statutory appeals were filed for two assessment years, which constitute said AYs. statutory appeals were disposed of by First Appellate Authority namely first respondent in instant writ petitions, by way of two separate orders bearing references 'ITA No.225(T)/CIT(A)-7/2015-16' and 'ITA No.414(T)/CIT(A)-7/2016-17', both dated 18.03.2019 [hereinafter 'impugned orders' in plural and 'impugned order' in singular]. Instant writ petitions have been filed, assailing impugned orders. 5. Notwithstanding very many grounds raised in affidavits filed in support of writ petitions and notwithstanding grounds urged / contentions campaigned in affidavits filed in support of instant writ petitions, learned counsel for writ petitioner abridged and restricted his submissions in hearing to one aspect of matter and that ground is, writ petitioner not being given opportunity of personal hearing before Appellate Authority. 6. Adverting to Sub Sections 1 and 2 of Section 250 of IT Act, 4/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 learned counsel for writ petitioner contended that it is statutorily imperative for First Appellate authority to give personal hearing. 7. This is case where, it is mentioned in impugned orders that notice of hearing was sent to writ petitioner, but same was returned unserved. This according to impugned orders was on 19.02.2019. Though it is mentioned in impugned orders that notices remained unserved, it has also been recorded in impugned orders that adjournment was sought on 08.03.2019. Learned Revenue counsel, pointing out this aspect of matter, submitted that it cannot be gainsaid that writ petitioner has not been given opportunity as writ petitioner has sought adjournment. However, writ petitioner contends that notices said to have been sent regarding personal hearing were never served on writ petitioner and therefore, contentions to contrary are untenable. 8. In this backdrop, without entering upon factual dispute and embarking upon exercise of resolving factual dispute regarding service of notice regarding personal hearing, this Court is of considered view that it would serve ends of justice and would 5/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 serve purpose of writ petitioner assessee as well as protect interests of revenue, if one opportunity of personal hearing is granted to writ petitioner. This course is being adopted as there is no disputation that it is statutorily imperative to give personal hearing, while disposing of appeal under Section 250 of IT Act. 9. However, in light of narrative thus far, this Court is of considered view that it would be appropriate to put writ petitioner on terms or in other words, it would be appropriate to direct writ petitioner to pay costs as condition precedent for personal hearing. To be noted, this was alternate submission of Revenue counsel made without prejudice to main contention. 10. In light of narrative thus far, following order is passed: a) Impugned orders of first respondent bearing references ITA No.225(T)/CIT(A)-7/2015-16 and ITA No.414(T)/CIT(A)-7/2016-17, both dated 18.03.2019 are set aside. b) To be noted, impugned orders are set aside without expressing any view or opinion on merits of matter 6/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 and this course is adopted only for purpose of facilitating statutorily imperative personal hearing to writ petitioner assessee. c) Writ petitioner assessee shall pay costs of Rs.10,000/- [Rupees Ten thousands only] in each of writ petitions [Rupees Twenty Thousands in all, this being common order] to Blue Cross of India, No.72, Velacherry Road, Guindy, Chennai 32 within fortnight from today i.e., on or before 12.08.2019. d) personal hearing is fixed by consent between parties on 22.08.2019 (Thursday) in office of 1st respondent at 12.00 Noon. However, it is open to 1 st respondent to adjourn hearing (if it becomes necessary) interalia by exercising his powers under Sub Section 3 of Section 250 of IT Act. e) If writ petitioner does not pay costs imposed, that would be end of matter and impugned orders will stand revived. f) If writ petitioner does not avail personal hearing, either on 22.08.2019 or any other adjourned day, even if it is after payment of costs, impugned orders will stand revived. 7/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 g) If writ petitioner pays costs in aforesaid manner and also, avails personal hearing before 1st respondent, 1st respondent shall hear appeal afresh again and pass orders afresh after considering all objections that are raised by writ petitioner assessee, in appeals moreso in personal hearing. orders shall be passed as expeditiously as possible and orders so passed shall be duly communicated to writ petitioner assessee under due acknowledgment. 11. Instant writ petitions are disposed of with aforesaid directions. Consequently, connected miscellaneous petitions are closed. 12. Though writ petitions are disposed of, Registry is directed to list these matters under caption 'FOR REPORTING COMPLIANCE' on 13.08.2019. 29.07.2019 kak Index:Yes/No Speaking order/Non-Speaking order 8/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 To 1.Commissioner of Income Tax(Appeals)-7 Room No.218, Main Building, 2nd Floor, 121, Mahatma Gandhi Road, Chennai 600 034. 2.The Income Tax Officer, Non-Corporate Ward 20(5) Chennai. 9/10 http://www.judis.nic.in W.P.Nos.22276 &22278 of 2019 M.SUNDAR, J. kak W.P.Nos.22276 & 22278 of 2019 and W.M.P.Nos.21569, 21570, 21571 & 21573 of 2019 29.07.2019 10/10 Gemini Film Circuit v. Commissioner of Income-tax, (Appeals)-7, Chennai / Income-tax Officer, Non-Corporate Ward-20(5), Chennai