A.YAHIYA KOYA V. UNION OF INDIA

RP/678/2013

AI Insights

The case involves a review petition filed by the appellants, who were the plaintiffs in a previous suit and appeal, seeking to contest a judgment that upheld distress action on their property under the Income Tax Act. The original judgment, delivered on 10.9.2012, found that the suit was not maintainable as per Rule 9 in the Second Schedule to the IT Act, and that such matters should be determined by the Tax Recovery Officer. The appellants sought a review of this decision, which was heard on 09-10-2013. The court, after considering the arguments and the delay in filing the review petition, dismissed both the review petition and the application for condonation of delay.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 679871 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 09-10-2013
• Assessment Year: misc
• Laws Referred To: Income Tax Act, Code of Civil Procedure
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; P K ABOOBACKER
• Assessee Lawyers: SANTHAN NAIR; V GOPIKRISHNA; V V MITHUN
• Keywords: Condonation of delay; Income Tax Act; Review petition; Tax Recovery Officer; Distress Action
• Section: 114; 47

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTA THIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 9TH DAY OF OCTOBER 2013/17TH ASWINA, 1935 RP.No. 678 of 2013 () IN AS.468/1998 -------------------------------------- AGAINST THE JUDGMENT IN AS 468/1998 OF HIGH COURT OF KERALA DATED 10-09-2012 REVIEW PETITIONER(S)/PETITIONERS: ---------------------------------------------------------------- 1. A.YAHIYA KOYA (DIED), S/O.ABDUL KARIM, NIAZ MANZIL, KANNIMELCHERRY KILIKOLLOOR.P.O., KOLLAM. 2. MOHAMMED NIYAZ, AGED 43 YEARS S/O.LATE YAHIYA KOYA, NIAZ MANZIL, KANNIMELCHERRY KILIKOLLOOR.P.O., KOLLAM. BY ADVS.SRI.SANTHAN V. NAIR SRI.V. GOPIKRISHNA SRI.V.V. MITHUN RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA NEW DELHI-110001. 2. THE INCOME TAX OFFICER, WARD C, INCOME TAX OFFICE, THIRUVANANTHAPURAM -695001. 3. THE INCOME TAX OFFICER, CENTRAL CIRCLE, INCOME TAX OFFICE, THIRUVANANTHAPURAM-695001. 4. THE INCOME TAX RECOVERY OFFICER, INCOME TAX OFFICER, KALPANA, PAYIKKADA ROAD QUILON-691001. 5. SMT.AMARAVATHY SOMASUNDARAM, PROPRIETRIX, SREERAMA CASHEW LTD., KOLLAM KERALA-691004. 6. N.H.SHERIEF (DIED), ZAVAD MANZIL, KANNIMEL, KILIKKOOLLOOR KOLLAM, RP.No. 678 of 2013 - 2 - 7. HIND SHERIF, D/O LATE SHAHUL HAMEED ZAVAD MANZIL, 2ND MILE STONE, KANNIMEL KILIKKOOLLOOR P.O., KOLLAM-691004. 8. ZAVAD SHERIEF, S/O.LATE N.H.SHERIEF, 2ND MILE STONE, KANNIMEL KILIKKOOLLOOR P.O., KOLLAM-691004. 9. ANFAZ SHERIEF, S/O.LATE N.H.SHERIEF, 2ND MILE STONE, KANNIMEL KILIKKOOLLOOR P.O., KOLLAM-691004. 10. FOUSIA ARSHAD, W/O.ARSHAD, KANNAKARA PUTHENVEEDU, KILIKKOOLLOOR P.O., KOLLAM - 691004. R1 TO 4 BY SRI. JOSE JOSEPH, STANDING COUNSEL, FOR INCOME TAX R BY SRI.P.K.ABOOBACKER THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 09-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP.No. 678 of 2013 APPENDIX PETITIONERS' EXHIBITS: --------------------------------- ANNEXURE A : COPY OF THE MEDICAL CERTIFICATE DATED 12.8.2013. ANNEXURE B : COPY OF THE MEDICAL BILLS DATED 15.7.2013 AND 16.7.2013 RESPONDENTS' EXHIBITS : ----------------------------------- NIL // TRUE COPY // P.A. TO JUDGE sou. THOTTATHIL B. RADHAKRISHNAN & A.V. RAMAKRISHNA PILLAI , JJ. -------------------------------------------------- C.M.Appl. No.411 of 2013 & R.P No. 678 of 2013 in A.S. No.468 of 1998 -------------------------------------------------- Dated this the 9th day of October, 2013 O R D E R Thottathil B. Radhakrishnan, J. We have heard the learned counsel for the applicants in the petition seeking condonation of 336 days' delay in instituting the review petition against judgment in a first appeal decided on 10.9.2012. 2. The proposed review petition is by the appellants who are the plaintiffs. The attempt in the suit and appeal was to save an item of property which was subjected to distress action in terms of the Income Tax Act. This Court has found in the appeal that in terms of Rule 9 in the Second Schedule to the IT Act, such suit would not lie and the matter has to be determined by order of Tax Recovery Officer. An independent suit on title, was not found to be maintainable. The plea of plaintiff that there was no material to show that they were treated as defaulters was also specifically found against them. We do not see any ground to review the judgment in the first appeal. No ground for review in terms of R.P.678/13 2 Section 114 or Order XLVII of the Code of Civil Procedure is made out. We also do not see any justifiable reason to be treated as sufficient cause to condone the delay of 336 days in applying for review, though certain medical certificates are produced. The Review Petition and the C.M. Application are dismissed. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE Sd/- A.V. RAMAKRISHNA PILLAI, JUDGE Sou. // True copy // "