2008 (11) TMI 177

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....he written objections dated June 12, 2008, and September 8, 2008, filed pursuant to the show-cause notices dated May 26, 2008, and September 1/2, 2008, were considered. 3. Relying on the judgment of the hon'ble apex court in Madhya Pradesh Industries Ltd. v. Union of India reported in AIR 1966 SC 671 , it has been contended on behalf of the respondent that personal hearing is not mandatory and it can be supplemented by written objection. Therefore, as written objections were considered, the order impugned is just and proper. 4. In order to appreciate the issue, it is necessary to refer to the relevant portion of the order impugned, which is extracted hereinbelow: "Consequent to the search and seizure operations under section 132 of....

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.... order as annexure A. In response, the assessees named at serial No.1 and 2 of the schedule below filed further rejoinders, all on September 9, 2008. In the said rejoinders, the said assessees reiterated the ground of their practical inconvenience in attending to proceedings at Ranchi, and requested for centralization of the other cases at Kolkata. The copy of the relevant rejoinder to each assessee is enclosed as annexure B. The assessees at serial Nos. 3 and 4 of the schedule below have not filed any rejoinder till date. 5. The contents of the assessees' rejoinders along with enclosures thereto have been perused and considered. However, I do not find substantive merit in the same. Personal inconvenience in attending proceedings cannot ....

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....  (Sd.)……………. Commissioner of Income-tax, Kolkata I, Kolkata." (emphasis supplied) 5. I find from paragraph 5 of the order impugned that respondent No.1 had "considered" the written objection. In the context of the case, "consideration" means taking into account and dealing with the materials on record leading to a decision. However, in the instant case, the order impugned is silent how the replies and enclosures on record were considered. Therefore, the logical conclusion would be that the materials on record were not considered at all. Further, section 127 of the Act postulates that the assessee should be given a reasonable opportunity of being heard in the matter, wherever it is possible to do so, thus making ....