A.M.ABDUL RAZAK, V. THE INCOME TAX OFFICER,

WP(C)/18370/2019

AI Insights

The case involves A.M. Abdul Razak, the petitioner, challenging the orders Ext.P3 and Ext.P4 issued by the Income Tax Officer under Section 271B of the Income Tax Act, 1961. The petitioner argued that the necessary documents, including the books and the auditor's report, were already submitted, and thus the orders were unjust. The respondent's counsel contended that the matter was straightforward and suitable for resolution through the appellate authority, not through writ jurisdiction. The court agreed with the respondent's counsel, emphasizing the availability of a statutory remedy of appeal, but provided interim relief to the petitioner by staying the recovery process for eight weeks to allow time for filing an appeal.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 758584 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-07-2019
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: S EASWARAN; SOUMYA JAMES; M A AUGUSTINE; P MURALEEDHARAN; P SREEKUMAR
• Keywords: Audit report; Demand notice; Income Tax; Jurisdictional fact; Statutory remedy of appeal; Writ petition
• Section: 271B

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941 WP(C).No.18370 of 2019 PETITIONER: A.M.ABDUL RAZAK, AGED 58 YEARS SON OF MEERANNAN, V.P.V-448, HILL PRODUCE DEALER, K.K.ROAD, VANDIPERIYAR-685533, IDUKKI DISTRICT. BY ADVS. SRI.S.EASWARAN SMT.SOUMYA JAMES SRI.M.A.AUGUSTINE SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.P.SREEKUMAR (THOTTAKKATTUKARA) RESPONDENT: THE INCOME TAX OFFICER, OFFICE OF THE INCOME TAX OFFICER, WARD-I, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM-686001. SC SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18370 of 2019 -2- JUDGMENT Heard Sri.S.Easwaran, the learned counsel for the petitioner and Sri. Jose Joseph, the learned Standing Counsel for the respondents. 2. Petitioner challenges Ext.P3 order and Ext.P4 demand. The issue arises under Section 271B of the Income Tax Act, 1961. Sri.M.S.Easwaran, does not dispute the availability of statutory remedy of appeal against the order in Ext.P3, but attempts to convince this Court to exercise writ jurisdiction, by canvassing that the omission namely the books together with Auditors report was already submitted and without reference to that Ext.P3 order is made. This is a jurisdictional fact which this Court can examine under its power of judicial review and set aside the orders challenged in the writ petition. 3. Sri.Jose Joseph, submits that this is a pure and simple verifiable circumstance which the appellate authority can undertake and there is no extraordinary circumstances made out WP(C).No. 18370 of 2019 -3- by the petitioner for invoking writ jurisdiction of this Court. He insists that the petitioner ought to be relegated to working out his grievances against Exts.P3 and P4 in a statutory appeal and all the contentions/ objections available in this behalf could be left open for consideration by the appellate authority. He prays for dismissing the writ petition. I have perused the record and noted the submission. This Court is convinced with the objection raised by the counsel appearing for respondents that Ext.P3 ought to be challenged by this appeal. Ext.P4 since is issued and there is threat of taking steps pursuant to Ext.P4 in the interregnum i.e, from today till the date of an appeal is filed and orders are considered and passed on the stay petition. Therefore with a view to protecting the rights of the petitioner and also enable the petitioner to file appeal and raise all grounds effectively, the writ petition is disposed of by this order:- (a) the petitioner is given liberty to file appeal within four weeks from today along with stay petition seeking stay of execution of WP(C).No. 18370 of 2019 -4- Ext.P3 order. (b) the respondents are directed not to effect recovery pursuant to Exts.P3 and P4 order/notice for eight weeks from today or till the order is made and communicated to the petitioner. Sd/- S.V.BHATTI JUDGE Ac WP(C).No. 18370 of 2019 -5- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AUDIT REPORT UNDER SECTION 44AB OF THE INCOME TAX ACT, 1961 DATED 15.12.2015. EXHIBIT P2 INDIAN INCOME TAX RETURN ACKNOWLEDGEMENT DATED 15.3.2016 ISSUED BY THE RESPONDENT. EXHIBIT P3 COPY OF ORDER DATED 7.6.2019 ISSUED BY THE RESPONDENT. EXHIBIT P4 COPY OF DEMAND DATED 11.6.2019 ISSUED BY THE RESPONDENT. RESPONDENT'S/S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE "